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[ { "docid": "23206251", "title": "", "text": "of action, the court granted Sanders’ motion for summary judgment based on state immunity, but found that the City was not entitled to immunity and denied its motion for summary judgment. Defendants now bring this timely appeal. Sanders appeals the district court’s denial of his motion for summary judgment on the grounds of qualified immunity. The City appeals the court’s denial of its motion for summary judgment on both Moore’s § 1983 and wrongful demotion claims. II. DISCUSSION A. Jurisdiction As a threshold matter, we first address our jurisdiction to consider these appeals. Although our jurisdiction over Sanders’ appeal on his defense of qualified immunity is well established, the district court’s denial of the City’s motion for summary judgment is not a final decision and does not fit into those category of orders that are interlocutorily appealable. Nevertheless, as explained below, we conclude that we can consider this appeal under the doctrine of pendent appellate jurisdiction. As a general rule, the denial of summary judgment is not a final decision within the meaning of 28 U.S.C. § 1291, and is, therefore, not appealable. However, an individual defendant, like Sanders, who is entitled to raise the defense of qualified immunity, may appeal the denial of summary judgment on the grounds of qualified immu nity even though the denial is not a final decision. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985); Salmon v. Schwarz, 948 F.2d 1131, 1135-36 (10th Cir.1991). In contrast, the City is not entitled to qualified immunity, Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980), and cannot invoke the collateral order doctrine to justify appeal of an otherwise nonappealable decision, Swint v. Chambers County Comm’n, — U.S. -, -, 115 S.Ct. 1203, 1207-08, 131 L.Ed.2d 60 (1995). Nevertheless, the City asks this Court to exercise pendent appellate jurisdiction over its appeal because it is interrelated with Sanders’ permissible appeal. Such an extension of our jurisdiction is generally disfavored; nevertheless, we conclude that it is appropriate in this case because our disposition of" } ]

[ { "docid": "23686313", "title": "", "text": "of cross-appeal. In their brief, the Baileys limit their cross-appeal to three issues: the grant of summary judgment to the police officers and the City of Hickory on the procedural due process claim; the denial of summary judgment on the state law claim of false imprisonment associated with the May 27 incident; and the grant of summary judgment to the police officers and the City of Hickory on the state law malicious prosecution claim associated with the September 3 incident. As noted above, we do not have jurisdiction over this interlocutory cross-appeal. Swint v. Chambers County Comm., 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). III. We have jurisdiction to review final orders of district courts under 28 U.S.C.A. § 1291 (West 1993). The police officers appeal the district court’s denial of qualified immunity on the federal law claims. To the extent that an order of a district court rejecting a government official’s qualified immunity defense turns on a question of law, it is a final decision within the meaning of § 1291 under the collateral order doctrine recognized in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and is therefore subject to immediate appeal. See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (holding that although interlocutory appeal is allowed from the denial of qualified immunity, questions of evidentiary sufficiency are not collaterally appealable). Accordingly, “we possess jurisdiction to consider an appeal from a decision of a district court rejecting a government official’s claim of entitlement to qualified immunity to the extent that the official maintains that the official’s conduct did not violate clearly established law.” Winfield v. Bass, 106 F.3d 525, 529 (4th Cir.1997) (en banc). On the other hand, “to the extent that the appealing official seeks to argue the insufficiency of the evidence to raise a genuine issue of material fact — for example, that the evidence presented was insufficient to support a conclusion that the official engaged in the particular conduct alleged — we do not possess jurisdiction under" }, { "docid": "9582721", "title": "", "text": "this court has jurisdiction over a denial of summary judgment to defendants on qualified immunity grounds under Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985). We would not normally have jurisdiction over the rest of the case — the summary judgment in favor of Brennan — because a partial summary judgment on the issue of liability alone is not a “final decision” under 28 U.S.C. § 1291. See Williams v. Com. of Kentucky, 24 F.3d 1526, 1542 (6th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 358, 130 L.Ed.2d 312 (1994). This case presents a special situation, however, in which the issues of liability and qualified immunity are so related to each other that we can dispose of them together under the doctrine of pendent appellate jurisdiction. We do so, reversing plaintiffs summary judgment against the two police officers. Our discretionary exercise of pendent appellate jurisdiction in this case is consistent with that of other courts of appeals, which have interpreted dictum in Swint v. Chambers County Comm’n, — U.S. -, -, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995), as allowing pendent appellate jurisdiction where the appealable and non-appealable issues are “inextricably intertwined.” See Dolihite v. Maughon, 74 F.3d 1027, 1035 n. 3 (11th Cir.1996); Kincade v. City of Blue Springs, 64 F.3d 389; 394-95 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1565, — L.Ed.2d - (1996); Moore v. Wynnewood, 57 F.3d 924, 928-31 (10th Cir.1995); Kaluczky v. City of White Plains, 57 F.3d 202, 207 (2d Cir.1995). Moore is especially instructive. In a carefully reasoned opinion, the Tenth Circuit determined that because the plaintiff had failed to show a constitutional violation in his § 1983 action, not only-should the police officer defendant prevail on qualified immunity grounds, but also the city defendant should prevail on its normally unappealable interlocutory claim. Moore, 57 F.3d at 927, 929-30. The two claims were “inextricably intertwined” because the finding of nonexistence of a constitutional claim for immunity purposes necessarily decided the whole case not only in favor of the officer, but also in" }, { "docid": "9699490", "title": "", "text": "of a defendant’s motion for dismissal or summary judgment on the grounds of qualified immunity easily meets [the] requirements [of a collateral order]”); id. at 530, 105 S.Ct. 2806 (“[A] district court’s denial of a claim of qualified immunity, to the extent it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”). By direct application of this doctrine, we have jurisdiction in appeal No. 99-56310, regarding the LASD’s appeal of the district court’s order holding it potentially liable as a County actor and not immune from suit in federal court under Federal Rule of Civil Procedure 17(b). We also conclude that we have jurisdiction over all aspects of appeal No. 99-56310 and No. 99-56766 under the doctrine of pendent appellate jurisdiction. In Swint v. Chambers County Comm’n, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), the Supreme Court suggested that district court decisions that are “inextricably intertwined” may be appropriate for joint review under the doctrine of pendent party appellate jurisdiction. Id. at 50-51, 115 S.Ct. 1203. Acting in accordance with Swint, a panel of this court in Huskey v. City of San Jose, 204 F.3d 893, 904-05 (9th Cir.2000), recently applied pendent appellate jurisdiction to review two orders denying summary judgment with jurisdictional facts similar to those present here. In Huskey, a former deputy city attorney sued the City of San Jose and the individual heads of the City Attorney’s office under 42 U.S.C. § 1983, seeking damages for wrongful termination and various other torts. The district court denied the City of San Jose and individual defendants’ motions for summary judgment, which claimed a qualified immunity defense. The individuals appealed the denial of summary judgment and we granted review. Id. at 898-902. We further found that the order denying the City of San Jose’s claim to summary judgment was inextricably intertwined with an order denying the individual’s summary judgment motion and therefore employed pendent jurisdiction to hear the City’s appeal. Id. at 902-06. The same procedural and jurisdictional situation exists" }, { "docid": "20008416", "title": "", "text": "he decided to use deadly force, it was still reasonable for him to shoot Mr. Davenport under the circumstances. Again, as detailed above, Mr. Davenport was a large, violent, and angry man who was unwilling to comply with direction from the police and who had attacked two police officers in quick succession, with only four seconds having elapsed while he delivered at least five blows to the two officers. In those four seconds Mr. Davenport had struck Officer Causey at least twice and knocked him to the ground, and had struck Officer Pugh in the head three times, strikes which Officer Causey had observed. At the time he was shot, Mr. Davenport was preparing to strike Officer Pugh on the top of his head with his fist for a fourth time. As conceded by the plaintiffs, Mr. Davenport had given no indication that he planned on retreating, and, if the fight were scored on points, Mr. Davenport was winning. While Officer Causey may have been mistaken in deciding that deadly force was required and that there was no time to warn Mr. Davenport, we cannot say that, given the rapidly evolving circumstances, his decision was unreasonable. Id. II. City of Crossville’s Appeal A. Jurisdiction We normally do not have jurisdiction to consider an interlocutory appeal regarding a district court’s denial of summary judgment because such a denial does not constitute a “final decision.” 28 U.S.C. § 1291 (2006). While there is an exception for denials of summary judgment to officers in their individual capacities claiming qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), there is no exception for municipalities denied summary judgment because they are not provided qualified immunity, Swint v. Chambers County Comm’n, 514 U.S. 35, 42-43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (unanimous). We do, however, have pendent jurisdiction to review the city’s claim. “Pendent appellate jurisdiction refers to the exercise of jurisdiction over issues that ordinarily may not be reviewed on interlocutory appeal, but, may be reviewed on interlocutory appeal if those issues are inextricably intertwined with matters" }, { "docid": "23686312", "title": "", "text": "immunity, and as it related to the state law claims, on state law public officers’ immunity. On April 16, 2002, the district court entered summary judgment in favor of the City on the federal constitutional claims against it, entered summary judgment in favor of Kennedy and Whitley on the procedural due process claim against them, granted qualified immunity to the police officers on the Fourth Amendment false arrest claim associated with the September 3 incident, and entered summary judgment in favor of the police officers on the malicious prosecution claim associated with the September 3 incident. The district court denied the parties’ motions for summary judgment respecting the remaining claims. The police officers now appeal the denial of qualified immunity on the federal constitutional claims associated with the May 27 event; the denial of public officers’ immu nity on the state law claims associated with the May 27 event; and the denial of public officers’ immunity on the state law false arrest claim associated with the September 3 event. The Baileys filed a timely notice of cross-appeal. In their brief, the Baileys limit their cross-appeal to three issues: the grant of summary judgment to the police officers and the City of Hickory on the procedural due process claim; the denial of summary judgment on the state law claim of false imprisonment associated with the May 27 incident; and the grant of summary judgment to the police officers and the City of Hickory on the state law malicious prosecution claim associated with the September 3 incident. As noted above, we do not have jurisdiction over this interlocutory cross-appeal. Swint v. Chambers County Comm., 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). III. We have jurisdiction to review final orders of district courts under 28 U.S.C.A. § 1291 (West 1993). The police officers appeal the district court’s denial of qualified immunity on the federal law claims. To the extent that an order of a district court rejecting a government official’s qualified immunity defense turns on a question of law, it is a final decision within the meaning of § 1291" }, { "docid": "8688219", "title": "", "text": "Denial of Summary Judgment for Brotherton on Liability On September 14, 1994, Judge Speigel denied Brotherton’s motion for partial summary judgment as to the liability of the defendants. Brotherton did not file a notice of appeal until fifteen months later, on December 26, 1995, after the district court granted summary judgment for Dr. Cleveland and dismissed him from the suit. In that notice of appeal, Brother-ton purported to appeal from that judgment “and from any other final orders rendered by this court.” We lack jurisdiction over an appeal from the September 14, 1994 order, as that order is not “final.” See Swint v. Chambers County Comm’n, 514 U.S. 35, 41-43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (unanimous) (ruling that the denial of a summary judgment motion presented neither a final order nor an appealable collateral order). Even if Brotherton may petition for premature appellate review by piggybacking the issue of liability on her appeal from the order concerning Eleventh Amendment immunity, we decline to exercise whatever discretionary pendent appellate jurisdiction we may have. Cf. Swint, 514 U.S. at 50-51, 115 S.Ct. 1203 (explaining that, at least where district court’s rulings are unrelated, courts of appeal may not exercise “ ‘pendent party’ appellate jurisdiction” to review nonfinal orders); Brennan v. Township of Northville, 78 F.3d 1152, 1157-58 (6th Cir.1996). VI. Conclusion Because the Eleventh Amendment does not prevent the district court from exercising jurisdiction over Brotherton’s claims against Dr. Cleveland in his official capacity as Hamilton County Coroner, the district court’s judgment to the contrary is REVERSED. In all other respects, the district court’s judgment is AFFIRMED. We REMAND the case to the district court for further proceedings consistent with this opinion. . Brotherton also sought to certify a class of \"all beneficiaries and next of kin of decedents who have had their decendent's cornea removed by defendants without permission and/or in reckless disregard of whether there was an objection or refusal by said beneficiaries or next of kin to allow such procedure ... . Sometime before December 1991, Brother-ton brought a state negligence action against the same defendants. The" }, { "docid": "23613007", "title": "", "text": "1398, 63 L.Ed.2d 673 (1980). Thus the rule announced in Mitchell v. Forsyth that individual defendants can appeal from the denial of a motion for a summary judgment to obtain review of the merits of their qualified immunity defense does not empower a federal court to consider the denial of a municipality’s motion for a summary judgment in a § 1983 action. See Swint v. Chambers County Com’n, 514 U.S. 35, 38, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). The City argues that, if this court concludes that Gallo’s conduct did not violate Huskey’s federal constitutional rights, this court has pendent appellate jurisdiction over the merits of the City’s contention that the evidence is legally insufficient to support a judgment against it on Hus-key’s § 1983 claim. We begin our analysis of the City’s contention with a discussion of the current state of the law regarding pendent appellate jurisdiction. In 1995, the Supreme Court held that the Eleventh Circuit had improperly invoked the doctrine of pendent appellate jurisdiction. See Swint, 514 U.S. at 51, 115 S.Ct. 1203. In Swint, the plaintiffs filed a § 1983 action against three police officers and the Chambers County Commission. Id. at 37, 115 S.Ct. 1203. The three officers asserted the defense of qualified immunity. See id. at 38, 115 S.Ct. 1203. The Chambers County Commission contended that it was not liable because the sheriff who authorized the alleged civil rights violations was not a policymaker for the Chambers County Commission. See id. at 39, 115 S.Ct. 1203. The district court concluded that neither the officers nor the Chambers County Commission were entitled to a summary judgment on the plaintiffs’ § 1983 claims. See id. Both parties appealed. See id. at 40. The Eleventh Circuit held that it had jurisdiction over the officers’ appeal under Mitchell v. Forsyth. See id. With respect to the individual officers’ appeal, the Court of Appeals reversed the denial of a summary judgment on the plaintiffs’ due process claims based on the defense of qualified immunity, but affirmed the denial of a summary judgment as to plaintiffs’ § 1983 Fourth" }, { "docid": "23613006", "title": "", "text": "to trial might be scrutinized is not enough to support the conclusion that he was constructively discharged. See Thomas, 877 F.2d at 1434. Because he failed to allege facts sufficient to support a finding of constructive discharge, Huskey also failed to allege facts sufficient to support a finding that he was deprived of a property interest. The district court therefore erred in denying the individual defendants’ motion for a summary judgment as to Huskey’s § 1983 claim of a due process violation. See B.C., 192 F.3d at 1265 (noting that the first step in evaluating a defense of qualified immunity is to determine whether the plaintiff has alleged facts that, if true, would constitute a deprivation of a constitutional right). IV The City has requested that we consider the merits of its appeal from the denial of its motion for a summary judgment as pendent to the individual defendants’ interlocutory appeal. A municipality is not entitled to assert the defense of qualified immunity. See Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Thus the rule announced in Mitchell v. Forsyth that individual defendants can appeal from the denial of a motion for a summary judgment to obtain review of the merits of their qualified immunity defense does not empower a federal court to consider the denial of a municipality’s motion for a summary judgment in a § 1983 action. See Swint v. Chambers County Com’n, 514 U.S. 35, 38, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). The City argues that, if this court concludes that Gallo’s conduct did not violate Huskey’s federal constitutional rights, this court has pendent appellate jurisdiction over the merits of the City’s contention that the evidence is legally insufficient to support a judgment against it on Hus-key’s § 1983 claim. We begin our analysis of the City’s contention with a discussion of the current state of the law regarding pendent appellate jurisdiction. In 1995, the Supreme Court held that the Eleventh Circuit had improperly invoked the doctrine of pendent appellate jurisdiction. See Swint, 514 U.S. at 51, 115" }, { "docid": "17867044", "title": "", "text": "during the course of the encounter immediately prior to the shooting. In either event, we remain without jurisdiction to review the court’s finding that there existed genuine issues of disputed facts that precluded the entry of summary judgment. B. State Law Claims As to the Seviers’ state law claim for the tort of outrage, Defendants request that we consider their appeal of the district court’s denial of summary judgment under the discretionary doctrine of pendent appellate jurisdiction. However, the recent Supreme Court ease of Swint v. Chambers County Comm’n, — U.S. -, 115 S.Ct. 1208, 131 L.Ed.2d 60 (1995), forecloses our ability to exercise such jurisdiction in the present appeal. Prior to Swint, we exercised jurisdiction over otherwise nonfinal and non-appealable lower court decisions that were closely related to pendent appealable decisions. See, e.g., Primas v. City of Oklahoma City, 958 F.2d 1506, 1512 (10th Cir.1992). However, in Swint, the Supreme Court held that interlocutory appeals should ordinarily be limited to those expressly provided for by Congress, including (1) under 28 U.S.C. § 1292(b) where a district court certifies an issue for immediate appeal; and (2) pursuant to rules created by the Supreme Court according to its authority from the Rules Enabling Act, codified at 28 U.S.C. §§ 2071-2077. — U.S. at -, 115 S.Ct. at 1209-11. The Swint Court left open the possibility that pendent appellate jurisdiction might still be appropriate in those limited situations where an otherwise nonappealable decision is “inextricably intertwined” with the appeal-able decision, or where review of the nonap-pealable decision is “necessary to ensure meaningful review” of the appealable one. Id. at -, 115 S.Ct. at 1212. Subsequent to Swint, in Moore v. City of Wynnewood, 57 F.3d 924 (10th Cir.1995), we exercised pendent appellate jurisdiction to affirm summary judgment on otherwise nonappealable federal and state claims because the pendent issues related to those raised by the proper appeal of the denial of qualified immunity. There, we held that because our ruling on qualified immunity fully disposed of the pendent claims as well, the pendent claims were coterminous with, or subsumed in, the claim on" }, { "docid": "22945434", "title": "", "text": "Alternatively, he continues, the request for declaratory relief fails to state a claim or controversy and should be dismissed for lack of subject matter jurisdiction. In making these arguments, appellant Snow makes no mention as to whether we have jurisdiction to hear his interlocutory appeal. Although we had jurisdiction under the collateral order doctrine to entertain the appeals of Epstein, Rubin and Alcock due to the denial of qualified immunity, Snow’s appeal is on a different ground — in fact he prevailed below on his qualified immunity claim. “[T]he mere fact that a district court’s order includes a denial of qualified immunity does not mean that all issues addressed in that order are immediately ap-pealable. To be appealable the parts of a summary judgment order addressing other issues must independently meet the require ments of the Cohen v. Beneficial Industrial Loan Corporation ... test.” Swint v. City of Wadley, 51 F.3d 988, 1002 (11th Cir.1995), on remand from Swint v. Chambers County Comm’n, — U.S. —, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (reversing the Eleventh Circuit’s exercise of pendent party appellate jurisdiction to reach the claim of a party who was denied summary judgment where other appellants were appealing the denial of summary judgment of qualified immunity grounds). Because the denial of appellant Snow’s summary judgment motion from the declaratory judgment claim was not based on qualified immunity, the exception that allows us to hear immediately the appeals of appellants Epstein, Rubin, and Alcock does not apply to appellant Snow. If, as the district court concluded, this claim is against Snow in his official capacity, it implicates the concerns of the Eleventh Amendment and the denial of summary judgment is immediately appealable.. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, —-—, 113 S.Ct. 684, 687-89, 121 L.Ed.2d 605 (1993). On the other hand, if the claim is merely one against appellant in his personal capacity, his claim that no case or controversy exists is effectively reviewable on appeal after trial and no interlocutory appeal is available. Cf. Digital Equipment Corp. v. Desktop" }, { "docid": "23043450", "title": "", "text": "important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Midland, 489 U.S. at 799, 109 S.Ct. 1494. The Supreme Court has emphasized that the conditions for collateral order appeal are to be stringently applied to ensure that this narrow exception “never be allowed to swallow the general rule” requiring a judgment to be final prior to appeal. Digital Equip. Corp. v. Desktop Direct Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). We therefore determine the applicability of the collateral order doctrine “without regard to the chance that the litigation at hand might be speeded, or a particular injustic[e] averted by a prompt appellate court decision.” Id. (internal citation and quotation marks omitted). 1. Qualified Immunity We have jurisdiction to review a district court’s order denying summary judgment on a qualified immunity defense under the collateral order doctrine. See Armendariz v. Penman, 75 F.3d 1311, 1316 (9th Cir.1996). “However, our jurisdiction is limited to purely legal issues.” Watkins v. City of Oakland, 145 F.3d 1087, 1091 (9th Cir.1998). 2. Heck v. Humphrey We need not address whether the Heck issue meets the first and second prongs of the test outlined above because it is effectively reviewable on appeal. Appellate courts can effectively review a district court’s ruling on a Heck issue because, unlike immunity rights where the right is lost if the case goes to trial, an appellate court can reverse the district court after entry of a final judgment without departing from the holding or purpose of Heck. 3.Municipal Liability The rule announced in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that individual defendants can appeal from the denial of a motion for summary judgment to obtain review of the merits of their qualified immunity defense does not empower a federal court to consider the denial of a municipality’s motion for summary judgment in a section 1983 action. See Swint v. Chambers County Comm’n, 514 U.S. 35, 42-43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). B. Pendent Appellate" }, { "docid": "23043451", "title": "", "text": "of Oakland, 145 F.3d 1087, 1091 (9th Cir.1998). 2. Heck v. Humphrey We need not address whether the Heck issue meets the first and second prongs of the test outlined above because it is effectively reviewable on appeal. Appellate courts can effectively review a district court’s ruling on a Heck issue because, unlike immunity rights where the right is lost if the case goes to trial, an appellate court can reverse the district court after entry of a final judgment without departing from the holding or purpose of Heck. 3.Municipal Liability The rule announced in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that individual defendants can appeal from the denial of a motion for summary judgment to obtain review of the merits of their qualified immunity defense does not empower a federal court to consider the denial of a municipality’s motion for summary judgment in a section 1983 action. See Swint v. Chambers County Comm’n, 514 U.S. 35, 42-43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). B. Pendent Appellate Jurisdiction Arguing in the alternative, defendants contend that we have pendent appellate jurisdiction to review the district court’s Heck ruling and its denial of summary judgment for the City. Pendent appellate jurisdiction refers to the exercise of jurisdiction over issues that ordinarily may not be reviewed on interlocutory appeal, but may be reviewed on interlocutory appeal if raised in conjunction with other issues properly before the court. In Swint, the Supreme Court set out a general rule against exercising pendent jurisdiction over related rulings but left open the possibility that appellate courts could extend such jurisdiction if the rulings were “inextricably intertwined” or if review of the pendent issue was necessary to ensure meaningful review of the independently reviewable issue. See id. at 44 n. 2, 50-51, 115 S.Ct. 1203 (following “review of the independently reviewable issue”). We have consistently interpreted “inextricably intertwined” very narrowly. In California v. Campbell, 138 F.3d 772 (9th Cir.1998), for instance, we stated that “[g]iven the Supreme Court’s criticism of pendent appellate jurisdiction, the Court’s ‘inextricably intertwined’ exception should be" }, { "docid": "14947705", "title": "", "text": "from a district court’s denial of qualified immunity, see Fancher, 723 F.3d at 1198-99, “[n]o such right of appeal applies to [a county’s] appeal” from the denial of summary judgment, Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir.1994). The reason for this distinction is that “[t]he denial of a motion for summary judgment, unrelated to qualified immunity, is not a final action.” Walter, 33 F.3d at 1242 (emphasis added); see also Lynch v. Barrett, 703 F.3d 1153, 1163 (10th Cir.2013) (noting that a court’s denial of a local governmental entity’s “standard motion for summary judgment^]----a motion which raised a ‘mere defense to liability[,]’ ... does not constitute a final decision under § 1291 and is not appealable as such” (quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995))). Further, under well-settled precedent, ordinarily an official-capacity defendant — who is not entitled to rely upon qualified immunity, see Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005) — cannot pursue an interlocutory appeal as a matter of right, because he “cannot invoke the collateral order doctrine to justify appeal of an otherwise nonappealable decision,” Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir.1995). Nonetheless, “[w]e have previously recognized the doctrine of pendent appellate jurisdiction, under which we exercise jurisdiction over an otherwise nonfinal and nonappealable lower court decision that overlaps with an appealable decision.” Moore, 57 F.3d at 929; accord Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148 (10th Cir.2011). The doctrine is “discretionary, [and] the exercise of pendent appellate jurisdiction ‘is generally disfavored.’ ” Armijo ex rel. Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1264 (10th Cir.1998) (quoting Moore, 57 F.3d at 929); accord Timpanogos Tribe v. Conway, 286 F.3d 1195, 1200 (10th Cir.2002); see also Bryson v. Gonzales, 534 F.3d 1282, 1285-86 (10th Cir.2008) (“Pendent appellate jurisdiction is ... disfavored in the qualified immunity context.”). As the Supreme Court has suggested, our discretionary exercise of pendent jurisdiction over an otherwise unappealable (i.e., pendent) claim “may be appropriate where a district court’s decision on" }, { "docid": "654595", "title": "", "text": "for attorney fees in abeyance if we find that these issues are “inextricably intertwined” with Coleman’s appeal of the absolute immunity issue and those parts of their appeal of the qualified immunity issue for which we have jurisdiction, and if we choose to exercise pendant appellate jurisdiction. Swint v. Chambers County Comm’n, 514 U.S. 35, 50-51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). We have explained that the term “inextricably intertwined” refers only to cases in which “the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal — that is, when the appellate resolution of the collateral appeal necessarily resolves the pendent claim as well.” Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir.1995). Although in Moore we exercised pendent appellate jurisdiction, we also reiterated the Supreme Court’s explicit limitations on the use of that discretionary doctrine. “The rule announced in Swint is based at least in part on a concern that, even if pragmatic considerations of judicial economy point toward accepting jurisdiction, ‘a rule loosely allowing pendent appellate jurisdiction would encourage parties to parlay ... collateral orders into multi-issue interlocutory appeal tickets.’ ” Moore, 57 F.3d at 930 (quoting Swint, 514 U.S. at 49-50, 115 S.Ct. 1203). Moreover, even if the purpose of our exercise of pendent jurisdiction is to conserve judicial resources and promote judicial efficiency, the aggregate effect of the seemingly efficient disposition of the individual case is to “invite frequent extensive briefing and argument of issues that should not be reviewed because review would substantially increase the danger of untoward interference with the trial process.” Charles Alan Wright, Ar thur R. Miller & Edward H. Cooper, 16 Federal Practice and Procedure: Jurisdiction 2d, § 3937, at 696 (1996). In Moore, we considered pendent state claims against defendants City of Wynne-wood and its chief of police where the disposition of the interlocutory appeal over which we had jurisdiction — the denial, based solely on an abstract issue of law, of the police chiefs motion for summary judgment based on a qualified immunity defense — -necessarily disposed of many" }, { "docid": "7756514", "title": "", "text": "determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed.” Id. We review the district court’s denial of qualified immunity to Chief Samuels and Officer Chew under those constraints. 2. The City of Oakland’s interlocutory appeal. “[A] municipality is not entitled to the shield of qualified immunity from liability under § 1983.” Brandon v. Holt, 469 U.S. 464, 473, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985); see also Chew v. Gates, 27 F.3d 1432, 1439 (9th Cir.1994). Ordinarily, denial of summary judgment that does not dispose of all claims against all parties is not a final appealable order. See Cheng v. CIR, 878 F.2d 306, 309 (9th Cir.1989) (noting that “orders granting partial summary judgment, be cause they do not dispose of all claims, are not final appealable orders under section 1291”). However, Oakland requests that we take pendant jurisdiction over the district court’s denial of its motion for summary judgment because the officers’ claim of qualified immunity is “inextricably intertwined” with the issue of Oakland’s liability. See Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). In Swint, the Supreme Court set out a general rule against exercising pendant jurisdiction over related rulings but left open the possibility that appellate courts could extend such jurisdiction if the rulings were “inextricably intertwined.” Id. We do not find the district court’s denial of summary judgment to Oakland inextricably intertwined with the denial of qualified immunity to Officer Chew and Chief Samuels. In Chew, we held that the liability of Los Angeles for a police dog bite was separate from the officer’s qualified immunity defense. See 27 F.3d at 1445 (affirming the district court’s grant of qualified immunity while reversing the district court’s award of summary judgment to the City of Los Angeles). We reasoned that: Under the Monell doctrine, Chew may recover from the city if his injury was inflicted pursuant to city policy, regulation, custom, or usage. City policy “need only cause the constitutional violation; it need not be unconstitutional per se.” City policy “causes” an" }, { "docid": "7874568", "title": "", "text": "the Magistrate Judge’s denial of summary judgment on this Count. Defendants stated at oral argument that they did not consider the Magistrate Judge to have issued a final ruling on this portion of their motion for summary judgment because the opinion’s legal analysis focused almost entirely on the officers’ qualified immunity as to the claimed Fourth Amendment violations. Regardless, the Magistrate Judge clearly disposed of the summary judgment motion as to Count III, stating in his opinion that “Defendants’ Motion for Summary Judgment is hereby GRANTED as to Counts IV through IX, and DENIED as to Counts I through III.” Thus, the defendants have waived their right to appeal the denial of qualified immunity as to Count III. See United States v. Slade, 980 F.2d 27, 30 n. 3 (1st Cir.1992) (“[T]heories neither briefed nor argued on appeal are deemed to have been waived.”). D. The Municipal Defendant The Town of Clinton also appeals from the denial of summary judgment. The Town seems to assume that it either has qualified immunity or gets the benefit of the individual officers’ qualified immunity. The Magistrate Judge took a similar approach, dismissing the Town’s motion for summary judgment by relying on his qualified immunity analysis. Fletcher does not make a separate argument of lack of jurisdiction over the Town’s appeal. If, of course, the denial of summary judgment was based on immunity grounds, there would be appellate jurisdiction. But both the Magistrate and Town are wrong to view this in immunity terms. To the extent there is a question as to whether we have appellate jurisdiction, we exercise very limited pendent jurisdiction. Both the parties and the Magistrate Judge demonstrate that the decision on the Town’s motion for summary judgment was “inextricably intertwined with that court’s decision to deny the individual defendants’ qualified immunity motions.” Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); see also Mattox v. City of Forest Park, 183 F.3d 515, 524 (6th Cir.1999). Because pendent jurisdiction is discouraged, see, e.g., Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 105 & n. 2" }, { "docid": "1623336", "title": "", "text": "process claims against the individual defendants. Accordingly, those defendants should have been granted summary judgment on the grounds of qualified immunity. C. The Merits Appeal by the Ccyrporate Defendants Institutional entities, unlike individual officials, have no right to invoke a defense of qualified immunity, see, e.g., Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993) (“defense[ ] of ... qualified immunity ... [does] not belong to the governmental entity, and the entity itself is not allowed to assert [it].”). The summary judgment motion of the corporate defendants was thus directed simply to the merits of Munafo’s claims. The denial of such a motion, as discussed above, is not a collateral order and is not immediately appealable. The corporate defendants ask us, as a matter of our discretion, to exercise jurisdiction over their appeal, pendent to our jurisdiction over the individual defendants’ appeal from the denial of their qualified-immunity-based motions, arguing that the merits are inextricably intertwined with the issue of qualified immunity. As to Munafo’s First Amendment claims, of course, there is no longer any conceivable basis for the exercise of pendent jurisdiction because we have concluded that we have no jurisdiction to entertain the appeal of the individual defendants. And while we do have jurisdiction with respect to the individual defendants’ qualified-immunity defense to the due process claims, we decline to entertain the corporate defendants’ merits-based appeal with regard to those claims. In the federal system, there iá a general presumption against immediate appellate review of nonfinal orders, and the Supreme Court has cautioned against the adoption of a “flexible” or “loose” approach in connection with the exercise of pendent appellate jurisdiction. See Swint v. Chambers County Commission, 514 U.S. 35, 45-50, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). Accordingly, we have exercised such jurisdiction only in exceptional circumstances. In McCullough v. Wyandanch Union Free School District, 187 F.3d 272, 277-82 (2d Cir.1999), for example, we exercised our discretion to entertain the merits-based appeal by a school district" }, { "docid": "9567079", "title": "", "text": "412 (1989) (adopting “deliberate indifference” standard of municipal liability for failure-to-train claims under 42 U.S.C. § 1983); Monell v. New York City Dep’t of Social Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978) (limiting municipal liability under 42 U.S.C. § 1983 to actions occurring pursuant to official policy or custom). We conclude, however, that the interlocutory appeal of the City is not properly before us, in light of Swint v. Chambers County Comm’n, 514 U.S. -, -, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995) (Swint). In Swint, the Supreme Court held that the Court of Appeals had lacked jurisdiction to review on interlocutory appeal the district court’s denial of summary judgment to the Chambers County Commission in a suit brought under 42 U.S.C. § 1983. Id. at ---, 115 S.Ct. at 1207-12. The Court first noted that the district court order denying the County Commission’s summary judgment motion was not appealable as a collateral order. See id. at -, 115 S.Ct. at 1208; see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) (decisions which are conclusive, which resolve important questions apart from the merits of the underlying action, and which are effectively unreviewable on appeal from final judgment may be appealed immediately as collateral orders). The Court held that although the Court of Appeals had jurisdiction to review immediately the denial of summary judgment to individual police officer defendants on qualified immunity grounds, it lacked “pendent party” appellate jurisdiction to review contemporaneously the unrelated question of the County Commission’s liability. See Swint, — U.S. at -, 115 S.Ct. at 1212. Nevertheless, the Court stated that, “[w]e need not definitively or preemptively settle here whether or when it may be proper for a court of appeals with jurisdiction over one ruling to review, conjunctively, related rulings that are not themselves independently appealable.” Id. This court applied Swint in Kincade v. City of Blue Springs, 64 F.3d 389, 394-95 (8th Cir.1995) (Kincade). In Kincade, several city officials sought review of a denial of their motion" }, { "docid": "20008417", "title": "", "text": "there was no time to warn Mr. Davenport, we cannot say that, given the rapidly evolving circumstances, his decision was unreasonable. Id. II. City of Crossville’s Appeal A. Jurisdiction We normally do not have jurisdiction to consider an interlocutory appeal regarding a district court’s denial of summary judgment because such a denial does not constitute a “final decision.” 28 U.S.C. § 1291 (2006). While there is an exception for denials of summary judgment to officers in their individual capacities claiming qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), there is no exception for municipalities denied summary judgment because they are not provided qualified immunity, Swint v. Chambers County Comm’n, 514 U.S. 35, 42-43, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (unanimous). We do, however, have pendent jurisdiction to review the city’s claim. “Pendent appellate jurisdiction refers to the exercise of jurisdiction over issues that ordinarily may not be reviewed on interlocutory appeal, but, may be reviewed on interlocutory appeal if those issues are inextricably intertwined with matters over which the appellate court properly and independently has jurisdiction.” Summers v. Leis, 368 F.3d 881, 889 (6th Cir. 2004) (citations omitted). We have previously held that where we evaluate whether a constitutional violation has occurred due to a proper appeal from a denial of qualified immunity, we can also evaluate the constitutional question in regard to the city because the question is the same, and therefore the appeal is “inextricably intertwined.” See Meals v. City of Memphis, 493 F.3d 720, 727 (6th Cir.2007). B. Merits Establishing a constitutional violation in the particular circumstance is required to maintain an action against a city for inadequate training of its police officers. Mattox v. City of Forest Park, 183 F.3d 515, 523 (“If the plaintiffs have failed to state a claim for violation of a constitutional right at all, then the City of Forest Park cannot be held liable for violating that right any more than the individual defendants can.”). When evaluating Officer Causey’s appeal, we determined that a constitutional violation did not occur. The city, therefore," }, { "docid": "7874569", "title": "", "text": "of the individual officers’ qualified immunity. The Magistrate Judge took a similar approach, dismissing the Town’s motion for summary judgment by relying on his qualified immunity analysis. Fletcher does not make a separate argument of lack of jurisdiction over the Town’s appeal. If, of course, the denial of summary judgment was based on immunity grounds, there would be appellate jurisdiction. But both the Magistrate and Town are wrong to view this in immunity terms. To the extent there is a question as to whether we have appellate jurisdiction, we exercise very limited pendent jurisdiction. Both the parties and the Magistrate Judge demonstrate that the decision on the Town’s motion for summary judgment was “inextricably intertwined with that court’s decision to deny the individual defendants’ qualified immunity motions.” Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); see also Mattox v. City of Forest Park, 183 F.3d 515, 524 (6th Cir.1999). Because pendent jurisdiction is discouraged, see, e.g., Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 105 & n. 2 (1st Cir.1991) (noting that restrictions on pendent jurisdiction are “self-imposed” and mean that “interlocutory review of a qualified immunity order does not in and of itself confer jurisdiction over other contested issues in the case”), we assume jurisdiction over this claim only to vacate the Magistrate Judge’s denial of the Town’s motion for summary judgment and remand for full consideration of the issues raised by the Town’s motion. The Magistrate Judge’s resolution of the officers’ request for qualified immunity did not dispose of the Town’s motion for summary judgment. A municipality’s position in a § 1983 suit differs from that of the individual defendants in two key ways. First, the municipality enjoys no immunity from damages liability under § 1983. See Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). This means that it is “not impossible for a municipality to be held liable for the actions of lower-level officers who are themselves entitled to qualified immunity.” Joyce, 112 F.3d at 23. Second, a municipality cannot be held" } ]

[ { "docid": "22768825", "title": "", "text": "Magistrate Judge’s award was not contrary to law.” Id., at 11a. The District Court also granted several defendants’ motions to disqualify petitioner as counsel for plaintiff due to the fact that she was a material witness in the ease. Although proceedings in the District Court were ongoing, petitioner immediately appealed the District Court’s order affirming the Magistrate Judge’s sanctions award to the United States Court of Appeals for the Sixth Circuit. The Court of Appeals, over a dissent, dismissed the appeal for lack of jurisdiction. Starcher v. Correctional Medical Systems, Inc., 144 F. 3d 418 (1998). It considered whether the sanctions order was immediately appealable under the collateral order doctrine, which provides that certain orders may be appealed, notwithstanding the absence of final judgment, but only when they “are conclusive, . . . resolve important questions separate from the merits, and . .. are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint v. Chambers County Comm’n, 514 U. S. 35, 42 (1995) (citing Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949)). In the Sixth Circuit’s view, these conditions were not satisfied because the issues involved in petitioner’s appeal were not “completely separate” from the merits. 144 F. 3d, at 424. As for the fact that petitioner had been disqualified as counsel, the court held that “a non-participating attorney, like a participating attorney, ordinarily must wait until final disposition of the underlying ease before filing an appeal.” Id., at 425. It avoided deciding whether the order was effectively unre-viewable absent an immediate appeal but saw “no reason why, after final resolution of the underlying ease ... a sanctioned attorney should be unable to appeal the order imposing sanctions.” Ibid. The Federal Courts of Appeals disagree over whether an order of Rule 37(a) sanctions against an attorney is immediately appealable under §1291. Compare, e.g., Eastern Maico Distributors, Inc. v. Maico-Fahrzeugfabrik, G.m.b.h., 658 F. 2d 944, 946-951 (CA3 1981) (order not immediately appealable), with Telluride Management Solutions, Inc. v. Telluride Investment Group, 55 F. 3d 463, 465 (CA9 1995) (order immediately appealable). We granted" } ]

[ { "docid": "22616648", "title": "", "text": "a more detailed examination. We may acquire jurisdiction over appeals through final judgments under 28 U.S.C. § 1291 and collateral orders under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143, 154 (3d Cir.2005). Generally, a decision of the district court is “final” under § 1291 if it “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); see also Aluminum Co. of Am. v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir.1997) (explaining that “there is no final order if claims remain unresolved and their resolution is to occur in the district court”). Here, the litigation arising from the various “severed and amended” complaints is ongoing. Thus the orders are far from being “final decisions” that are ordinarily the subject of appeal under § 1291. However, as the Supreme Court has interpreted the phrase “final decision” in § 1291, there exists “a narrow class of collateral orders which do not meet [the] definition of finality, but which are nevertheless immediately appealable under § 1291.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). Recognizing this, our Court has explained that the collateral order doctrine provides a narrow exception to the general rule permitting appellate review only of final orders. An appeal of a nonfinal order will lie if (1) the order from which the appellant appeals conclusively determines the disputed question; (2) the order resolves an important issue that is completely separate from the merits of the dispute; and (3) the order is effectively unreviewable on appeal from a final judgment. In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir.1997) (citations omitted). Because we conclude that the filing fee Order fails to satisfy the third prong, we confine our analysis to it. Powers v. Southland Corp., 4 F.3d 223, 231 (3d Cir.1993). Under this prong," }, { "docid": "12146181", "title": "", "text": "“determin[e] issues relating to plaintiffs’ status as employees or independent contractors.” Swift moved for an order to stay proceedings, including discovery, and for an order setting a briefing schedule to determine the § 1 issue without resort to discovery and trial. The court denied Swift’s motion. It also concluded that the order was not immediately appealable. This interlocutory appeal followed. II Pursuant to 28 U.S.C. § 1291, we only have appellate jurisdiction over “final decisions” of district courts. Id. Thus, with certain exceptions, we lack appellate jurisdiction over interlocutory appeals from orders of the district court issued before final judgment. Johnson v. Jones, 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Congress, of course, may by statute invest us with jurisdiction over certain interlocutory orders. District courts may certify a decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) or certify a summary judgment order as final under Fed. R. Civ P. 54(b). The Supreme Court has also confirmed our appellate jurisdiction over “a small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). This “collateral order doctrine” is a “practical construction” of the concept of finality in 28 U.S.C. § 1291. Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). “That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint, 514 U.S. at 42, 115 S.Ct. 1203 (citing Cohen, 337 U.S. at 546, 69 S.Ct. 1221). In turn, we have given the concept of “finality” the following practical construction: “A ruling is final for purposes of § 1291 if it (1) is a full adjudication of the issues, and (2) clearly evidences the judge’s intention that it be the court’s final" }, { "docid": "3058041", "title": "", "text": "and citation omitted). Finally, other courts have held that an order granting leave to amend a complaint is not a final decision. See, e.g., Lawson v. Abrams, 863 F.2d 260, 262 (2d Cir.1988) (“An order that grants leave to amend the complaint is plainly not a final decision because it allows the litigation to continue”) (citations omitted); Levy v. Securities & Exchange Comm’n, 405 F.2d 484, 486 (5th Cir.1968) (same); La Capria v. Compagnie Maritime Belge, 373 F.2d 579, 581 (2d Cir.1967) (“No discussion is required to show that the order [granting leave to amend the complaint to designate the action as one in admiralty pursuant to Fed.R.Civ.P. 9(h)] is [not] a final decision under 28 U.S.C. § 1291... ”) (citations omitted). Accordingly, we conclude that neither order is appealable as a final decision within the meaning of § 1291. This is precisely the type of appeal that the final judgment rule was designed to prevent, as such a piecemeal appeal promotes inefficient judicial administration, imposes unnecessary delay and cost, and interferes with the traditional relationship between trial and appellate courts. See Cunningham, - U.S. at - - -, 119 S.Ct. at 1919-20 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)). Although we have determined that appellate jurisdiction does not lie under § 1291 “in the traditional sense,” Mitsubishi, 102 F.3d at 871, “a small category of orders that do not terminate the litigation,” Cunningham, - U.S. at -, 119 S.Ct. at 1920 (citations omitted), are nevertheless appealable under the collateral order doctrine enunciated by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Thus, § 1291 “permits appeals not only from a final decision by which a district court disassociates itself from a case, but also from a small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). In order to fall" }, { "docid": "19074915", "title": "", "text": "even if the parties concede it); accord City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1045 n. 8 (10th Cir.1994), cert. denied, 513 U.S. 1191, 115 S.Ct. 1254, 131 L.Ed.2d 135 (1995). This Court, with consent of the parties, has “jurisdiction to hear appeals from ... final judgments, orders, and deerees[.]” 28 U.S.C. § 158(a)(1); see id. at § 158(b)(1) & (c)(1); 10 Cir. BAP L.R. 8001-1(c). “[A] decision is ordinarily considered final and appealable under § 1291 [and § 158(a) ] only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945)). Orders may also be considered “final” if they meet the requirements of the collateral order doctrine. See, e.g., Quackenbush, 517 U.S. at 710-12, 116 S.Ct. at 1718; Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). An order is “final” under the collateral order doctrine if it (1) conclusively determines a disputed question that is completely separate from the merits of the action, (2) is effectively unreviewable on appeal from a final judgment, and (3) is too important to be denied review. Quackenbush, 517 U.S. at 712-16, 116 S.Ct. at 1719-20 (relying on Richardson-Merrell Inc. v. Roller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978); Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26). The Tenth Circuit has made it clear that orders denying confirmation of a chapter 13 plan are not “final” under 28 U.S.C. § 158(a). Simons v. FDIC (In re Simons), 908 F.2d 643, 645 (10th Cir.1990). Moreover, the elements of the collateral order doctrine are not met in this case. Accordingly," }, { "docid": "23530773", "title": "", "text": "not thought to come within it. See Insurers Syndicate for the Joint Underwriting of Medico- Hosp. Prof'l Liab. Ins. v. Garcia, 864 F.2d 208, 210 (1st Cir.1988). One reason that most discovery orders do not fall within the collateral order exception is because they do not meet the “otherwise effectively unreviewable” requirement; the party resisting the discovery order “can gain the right of appeal ... by defying it, being held in contempt, and then appealing from the contempt order, which would be a final judgment as to [him].” Corporacion Insular de Seguros v. Garcia, 876 F.2d 254, 257 (1st Cir.1989). This praxis—insisting upon disobedience followed by contempt as a condition to reviewability—is commonly called the Cobbledick rule. See Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 84 L.Ed. 783 (1940). The rule serves efficiency interests because it encourages reflection both by the party seeking discovery and by the party resisting it. See 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3914.23, at 154 (2d ed.1992). The rationale underlying the Cob-bledick rule is distorted, however, when a discovery order runs to someone other than an adverse party (a phenomenon that occurs when, say, a court enforces a subpoena duces tecum served upon a non-party). Since a third person “presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance,” Church of Scientology v. United States, 506 U.S. 9, 18 n. 11, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992), this circumstance justifies a different approach. Under what has been termed the Perlman rule, a discovery order addressed to a non-party sometimes may be treated as an immediately appealable final order vis-á-vis a party who claims to hold an applicable privilege. See id.; see also Perlman v. United States, 247 U.S. 7, 12-15, 38 S.Ct. 417, 62 L.Ed. 950 (1918). Courts frequently have invoked Perlman when a client (who is herself a party or a grand jury target) seeks to appeal an order compelling her attorney (who is neither a party nor a target) to produce allegedly privileged materials." }, { "docid": "7473677", "title": "", "text": "base of operations to plan and prepare for the bombing, and provided operational support for the attack. Ae-coi'dingly, we find no merit in Sudan’s contention that Plaintiffs failed to allege sufficient facts to support the jurisdictional causation element of § 1605(a)(7). In summary, we find that Plaintiffs alleged sufficient facts to create subject matter jurisdiction under § 1605(a)(7) and, therefore, find no error in the district court’s denial of Sudan’s motion to dismiss for lack of subject matter jurisdiction. III. Sudan next asks this court to exercise pendent appellate jurisdiction over the district court’s denial of its motion to dismiss for lack of personal jurisdiction, which is a non-final order that is not otherwise immediately appealable. Sudan argues that we should do so to pro-mote the efficient use of judicial resources by foregoing the litigation that would potentially result from delaying review of this issue until after final judgment is entered in the district court. We must decline to exercise such jurisdiction, however. It borders on the axiomatic that, subject to certain limited exceptions, our appellate jurisdiction is limited to final orders from the district courts. 28 U.S.C. § 1291 (2000). The district court’s order denying Sudan’s motion to dismiss for lack of personal jurisdiction is not a final order because it does not “end [ ] the litigation on the merits and leave[ ] 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). Nor does it fall within the category of non-final orders that are immediately appealable under the collateral-order doctrine because they are “conclusive, ... resolve important questions separate from the merits, and ... are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). There is nothing that would prevent effective review of the denial of a motion to dismiss for lack of personal jurisdiction" }, { "docid": "12146182", "title": "", "text": "do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). This “collateral order doctrine” is a “practical construction” of the concept of finality in 28 U.S.C. § 1291. Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). “That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint, 514 U.S. at 42, 115 S.Ct. 1203 (citing Cohen, 337 U.S. at 546, 69 S.Ct. 1221). In turn, we have given the concept of “finality” the following practical construction: “A ruling is final for purposes of § 1291 if it (1) is a full adjudication of the issues, and (2) clearly evidences the judge’s intention that it be the court’s final act in the matter.” Nat’l Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997) (internal quotation marks omitted). Here, we are presented with an interlocutory appeal from a scheduling and case management order. The order was not “a full adjudication of the issues,” nor did it “clearly evidence[ ] the judge’s intention that it be the court’s final act in the matter.” Id. The order was not “conclusive”; it did not “resolve important questions separate from the merits”; nor did it involve a decision “that [is] effectively unreviewable on appeal from the final judgment in the underlying action.” Swint, 514 U.S. at 42, 115 S.Ct. 1203. Much to the contrary, it was a routine order following remand from this Court establishing a procedure for pre-discovery disclosure, and a schedule for discovery, the filing of dispositive and nondispositive motions, and a trial, if necessary. Thus, it does not fall within that “small category” of orders subject to interlocutory review under the collateral order doctrine. The district court did not certify the" }, { "docid": "6395790", "title": "", "text": "we must start from the principle that appellate jurisdiction under 28 U.S.C. § 1291 extends only to “final decisions.” A district court’s denial of summary judgment “is a classic interlocutory order” because “[a]ll it does is require the litigation to continue.” Davis v. Streekstra, 227 F.3d 759, 761 (7th Cir.2000). “Such an order might be appropriate for certification under 28 U.S.C. § 1292(b),” id. (citing Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674 (7th Cir.2000)), but here the district court refused to certify the exhaustion issue for immediate appeal. That setback did not deter the state defendants from including the exhaustion issue in their notice of appeal. The state defendants’ new position is that the denial of summary judgment on grounds of failure to exhaust is immediately appealable under the collateral order doctrine. “The collateral order doctrine is best understood not as an exception to the ‘final decision’ rule laid down by Congress in § 1291, but as a ‘practical construction’ of it.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). In Cohen, the U.S. Supreme Court identified a “small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (citing Cohen, 337 U.S. at 546, 69 S.Ct. 1221). Cohen defined this category as including “only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Id. (citing Cohen, 337 U.S. at 546, 69 S.Ct. 1221). The state defendants insist that “the necessary factors ... are present” in this case. State Defendants’ Resp. to Mot. to Dismiss at 3. We disagree. Even assuming that the district court’s interlocutory order is “conclusive,” and that the exhaustion issue is “important” and “separate from the merits,” we reject the notion that" }, { "docid": "15364684", "title": "", "text": "this route in favor of appeal on the basis of the collateral order doctrine. In this court, Cassirer filed a motion to dismiss as to issues other than those pertaining to sovereign immunity on the ground that appellate jurisdiction is lacking. The original panel agreed that the district court’s denial of motions to dismiss for lack of personal jurisdiction and case or controversy is not immediately appealable as a collateral order. Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1054-55 (9th Cir.2009). The panel held that § 1605(a)(3) does not require Spain to be the entity that expropriated the painting in violation of international law, and that the Foundation, which owns the painting, engaged in sufficient commercial activity in the United States to satisfy the FSIA. It further held that exhaustion is not statutorily required; however, a majority concluded that the district court erred in failing to conduct a prudential exhaustion analysis, and remanded for it to do so. We decided to rehear the case en banc. Cassirer v. Kingdom of Spain, 590 F.3d 981 (9th Cir.2009). II We must consider the bounds of our appellate jurisdiction at the outset. By statute, 28 U.S.C. § 1291, we have jurisdiction to review “final decisions” of the district court. A final decision is one that ends the litigation on the merits, Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 884 (9th Cir.2003), which no decision that is before us does. Still, we may review “a small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). “That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Id. It is well settled that sovereign immunity is within this small category of cases from which an immediate appeal will" }, { "docid": "23530772", "title": "", "text": "“final” decisions and orders of the district courts. Since the order from which Ogden purports to appeal does not conclude the litigation on the merits, it is not final in the stereotypical sense. See United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 14 (1st Cir.1988). Nevertheless, some orders that do not themselves end litigation are deemed final (and thus immediately appealable) under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To qualify for this sanctuary, an order must conclusively resolve an important question distinct from the merits and yet be unreviewable, as a practical matter, in a conventional end-of-case appeal. See Cunningham v. Hamilton County, 527 U.S. 198, 119 S.Ct. 1915, 1920, 144 L.Ed.2d 184 (1999); Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). The compass of this exception is “narrow,” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), and discovery orders generally are not thought to come within it. See Insurers Syndicate for the Joint Underwriting of Medico- Hosp. Prof'l Liab. Ins. v. Garcia, 864 F.2d 208, 210 (1st Cir.1988). One reason that most discovery orders do not fall within the collateral order exception is because they do not meet the “otherwise effectively unreviewable” requirement; the party resisting the discovery order “can gain the right of appeal ... by defying it, being held in contempt, and then appealing from the contempt order, which would be a final judgment as to [him].” Corporacion Insular de Seguros v. Garcia, 876 F.2d 254, 257 (1st Cir.1989). This praxis—insisting upon disobedience followed by contempt as a condition to reviewability—is commonly called the Cobbledick rule. See Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 84 L.Ed. 783 (1940). The rule serves efficiency interests because it encourages reflection both by the party seeking discovery and by the party resisting it. See 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3914.23, at 154 (2d" }, { "docid": "6395791", "title": "", "text": "U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). In Cohen, the U.S. Supreme Court identified a “small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (citing Cohen, 337 U.S. at 546, 69 S.Ct. 1221). Cohen defined this category as including “only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Id. (citing Cohen, 337 U.S. at 546, 69 S.Ct. 1221). The state defendants insist that “the necessary factors ... are present” in this case. State Defendants’ Resp. to Mot. to Dismiss at 3. We disagree. Even assuming that the district court’s interlocutory order is “conclusive,” and that the exhaustion issue is “important” and “separate from the merits,” we reject the notion that the court’s decision concerning the exhaustion requirement is “effectively unreviewable on appeal.” See Davis, 227 F.3d at 762. As the Seventh Circuit held in Davis, “[arguments based on § 1997e(a) may be resolved on appeal from the final judgment.” Id. “If the plaintiff was required to exhaust yet failed to do so, the appellate court will hold that the suit must be dismissed without prejudice,” id., just as this court did in Lyon v. Vande Krol, 305 F.3d 806 (8th Cir.2002) (en banc). See also Davis, 227 F.3d at 761 (collecting cases). The state defendants seem to assume that the exhaustion requirement set out in § 1997e(a) is meant to confer some form of immunity from the costs of litigation. They are mistaken, since “[ejxhaustion requirements do not create absolute (or even qualified) rights to be free from litigation.” Id. at 763. The state defendants also appeal to considerations of “judicial efficiency and economy,” which they say “militate in favor of addressing the [exhaustion] issue” immediately. State Defendants’ Reply Br. at 3. But such considerations" }, { "docid": "6760914", "title": "", "text": "425, 427 (1996). It means “at least an entire claim on which relief may be granted.” Id. “Although a ‘final order’ need not resolve all of the issues raised by the bankruptcy, it must completely resolve all of the issues pertaining to the discrete claim.” Id. at 427; See also In re Fugazy Express, Inc., 982 F.2d 769, 775-76 (2d Cir.1992). Even if an order is not a “final” order or judgment under the above definition, it may still be appealable under the “collateral order” exception to the final-judgment rule established by the United States Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). In order to come within the “small class” of decisions excepted from the final-judgment rule, the “collateral order” doctrine requires that the decision appealed from “[1] must conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the actions, and [3] be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2458; Swint v. Chambers County Comm’n, 514 U.S. 35, -, 115 S.Ct. 1203, 1205, 131 L.Ed.2d 60 (1995); United States v. Weiss, 7 F.3d 1088, 1089 (2d Cir.1993) (stating that all three requirements must be met for the non-final order to be appealable); Johns-Manville, 824 F.2d at 180. B. Leave to Bring an Interlocutory Appeal Section 158, however, does not provide any criteria for determining whether a district court should grant leave to permit an interlocutory appeal in a particular case. Thus, in construing section 158 district courts have adopted the standard set forth in 28 U.S.C. § 1292(b), which dictates the circumstances under which the court of appeals may accept interlocutory appeals from district courts. See In re Bimco Indus., Inc., 124 B.R. 623, 625-26 (E.D.N.Y.1991); In re Beker Indus. Corp., 89 B.R. 336, 341 (S.D.N.Y.1988); In re Johns-Manville Corp., 45 B.R. 833, 835 (S.D.N.Y.1984). Under section 1292(b), an interlocutory appeal may be granted when (1) the order appealed from involves a controlling question of law, (2)" }, { "docid": "15364685", "title": "", "text": "(9th Cir.2009). II We must consider the bounds of our appellate jurisdiction at the outset. By statute, 28 U.S.C. § 1291, we have jurisdiction to review “final decisions” of the district court. A final decision is one that ends the litigation on the merits, Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 884 (9th Cir.2003), which no decision that is before us does. Still, we may review “a small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). “That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action.” Id. It is well settled that sovereign immunity is within this small category of cases from which an immediate appeal will lie. See, e.g., Gupta v. Thai Airways Int'l, Ltd., 487 F.3d 759, 763-65 (9th Cir.2007); In re Republic of the Philippines, 309 F.3d 1143, 1148-49 (9th Cir.2002). The point of immunity is to protect a foreign state that is entitled to it from being subjected to the jurisdiction of courts in this country, protection which would be meaningless were the foreign state forced to wait until the action is resolved on the merits to vindicate its right not to be in court at all. Thus, we have jurisdiction to review the district court’s order denying sovereign immunity. The same is not true of the court’s orders denying motions to dismiss for lack of a case or controversy and personal jurisdiction. Van Cauwenberghe v. Biard, 486 U.S. 517, 526-27, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988), and Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003), both recognize that denial of a motion to dismiss for lack of personal jurisdiction is neither a final decision nor appealable under the collateral order doctrine. The FSIA presents a" }, { "docid": "2341237", "title": "", "text": "take immediate appeals of adverse privilege determinations if they could satisfy the requirements of the collateral order doctrine. The doctrine, first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), provides that there is a small class of collateral rulings that, although they do not terminate the litigation, are appropriately deemed final under § 1291. Id. at 545-46, 69 S.Ct. 1221. “That small category includes only deci sions [1] that are conclusive, [2] that resolve important questions separate from the merits, and [3] that are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 45, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). In Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009), however, the Supreme Court held that disclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine. Focusing exclusively on the third requirement of the collateral order doctrine, the Mohawk Court held that “collateral order appeals are not necessary to ensure effective review of orders adverse to the attorney-client privilege” where the privilege holder is a party to the litigation because “postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege.” Mohawk, 130 S.Ct. at 606. “Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.” Id. at 606-07. The Government argues that this decision narrows the traditionally understood scope of the Perlman doctrine to instances where effective postjudgment review is unavailable. Deciding whether Mohawk precludes our jurisdiction in this case—where the privilege holder, ABC Corp., is a subject of a grand jury investigation— prompts two distinct inquiries. The first is whether Mohawk, which dealt with the collateral order doctrine, applies to the Perlman rule at all. Other courts of appeals—see" }, { "docid": "3058042", "title": "", "text": "relationship between trial and appellate courts. See Cunningham, - U.S. at - - -, 119 S.Ct. at 1919-20 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)). Although we have determined that appellate jurisdiction does not lie under § 1291 “in the traditional sense,” Mitsubishi, 102 F.3d at 871, “a small category of orders that do not terminate the litigation,” Cunningham, - U.S. at -, 119 S.Ct. at 1920 (citations omitted), are nevertheless appealable under the collateral order doctrine enunciated by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Thus, § 1291 “permits appeals not only from a final decision by which a district court disassociates itself from a case, but also from a small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). In order to fall under the collateral order doctrine, an appealed from decision must satisfy three elements: (1) the order must conclusively determine the disputed question; (2) the order must resolve an important issue completely separate from the merits of the action; and (3) the order must be effectively unre-viewable on appeal from a final judgment. Cunningham, - U.S. at -, 119 S.Ct. at 1920; Swint, 514 U.S. at 42, 115 S.Ct. 1203; Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). If an order fails to meet one of these elements, it is not appealable as a collateral order. This area of appellate jurisdiction need not detain us long, as Chester has expressly indicated that it does not assert that the orders fall under the collateral order doctrine. However, even if the argument had been raised, we would reject it, as neither order meets the requirements set forth above. B. Interlocutory Appeals Because we have determined that the orders at issue were not final decisions, we must now consider" }, { "docid": "22307732", "title": "", "text": "decision is ordinarily considered final and appealable under § 1291 [and § 158(a) ] only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Quackenbush v. Allstate Ins. Co., — U.S. -, -, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). Orders may also be considered “final” if they meet the requirements of the collateral order doctrine. See, e.g., Quackenbush, — U.S. at -, 116 S.Ct. at 1718; Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Quackenbush, the Supreme Court held that an order requiring abstention and remand was a final order under the collateral order doctrine because it (1) conclusively determined a disputed question that was completely separate from the merits of the action, (2) was effectively unreviewable on appeal from a final judgment, and (3) was too important to be denied review. — U.S. at -, 116 S.Ct. at 1719-20 (relying on Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978); Cohen, 337 U.S. at 546, 69 S.Ct. at 1225)). The Bankruptcy Court’s orders in the present ease are final orders under the collateral order doctrine. They conclusively determine the disputed questions of the Bankruptcy Court’s jurisdiction, resolve an important issue completely separate from the merits of the action, and would be effectively unreviewable on appeal from a final judgment on the merits. In Quackenbush, the lower court abstained from hearing an action and remanded it to state court, while in this case the Bankruptcy Court has refused to abstain from hearing the Debtor and Personette’s action or to remand it to State Court. Quackenbush, however, does not preclude application of the collateral order doctrine to orders refusing to abstain" }, { "docid": "12316035", "title": "", "text": "the existence of a “final judgment,” see 28 U.S.C. § 1291, that conclusively “disposes of all the rights of all the parties to an action,” Licht, 796 F.2d at 569, “leav[ing] nothing for the [trial] court to do but execute the judgment,” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 709, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (citation omitted). Thus, the “final judgment” rule minimizes dilatory, piecemeal litigation, and promotes judicial efficiency. See Licht, 796 F.2d at 569 (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)). Where its salutary effects are outweighed by other practical considerations, however, limited exceptions to the final judgment rule are recognized. For example, the Cohen (or “collateral order”) exception enables an interlocutory appeal from an otherwise non-“final” order which meets four conditions. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order must (1) concern a collateral issue so conceptually distinct from other issues being litigated in the underlying action that an immediate appeal would neither disrupt the main action, nor threaten to deprive the appellate court of useful context which might be derived from subsequent developments in the litigation; (2) completely and conclusively resolve the collateral issue; (3) infringe rights which appellant could not effectively vindicate in an appeal after final judgment in the case; and (4) involve an important or unsettled legal issue, rather than merely challenge discretionary trial court rulings. See Licht, 796 F.2d at 570-71 (citing Cohen); United States v. Kane, 955 F.2d 110, 111 (1st Cir.1992) (reformulating these same Cohen criteria into a three-part test). On the question whether monetary sanctions against attorneys are “final,” either under section 1291 or Cohen, the courts of appeals remain divided. See Chaves v. M/V Medina Star, 47 F.3d 153, 155 n. 7 (5th Cir.1995) (outlining circuit split); compare, e.g., Frazier v. Cast, 771 F.2d 259, 261-62 (7th Cir.1985) (permitting interlocutory appeal); Cheng v. GAF Corp., 713 F.2d 886, 888-90 (2d Cir.1983) (same), with Click v. Abilene Nat’l Bank, 822 F.2d 544, 545 (5th" }, { "docid": "14713586", "title": "", "text": "premises on which the sign is located; or (b) Facilities not located on the premises on which the sign is located.” Or.Rev.Stat. § 377.710(22). . Under the collateral order doctrine, we may review a \"small class” of pre-judgment orders that provide a final determination of \"claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We can review a district court’s ruling under the collateral order doctrine if it is (1) conclusive, (2) resolves important questions separate from the merits, and (3) is effectively unreviewable on appeal from the final judgment in the underlying action. Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (citing Cohen, 337 U.S. at 546, 69 S.Ct. 1221). We held in Confederated Salish v. Simonich, 29 F.3d 1398, 1402-03 (9th Cir.1994), that a district court’s refusal to abstain under Younger satisfies the first and second prongs because it is conclusive and resolves an important question separate from the merits of the appeal, but that it fails the third prong of the collateral order doctrine because it can be reviewed effectively on appeal from a final judgment. Id. at 1403 (“On appeal from a final judgment, a court of appeals can review a district court's refusal to abstain under Younger, without implicating the mootness doctrine, even though the district court has decided the merits of the case and all state proceedings have been completed.”). The district court's refusal to abstain under Younger therefore is not part of the \"small class” of orders that fit within the collateral order exception to § 1291. . Swint did not address pendent appellate jurisdiction in the context of interlocutory review under § 1292(a)(1), but we have applied the Swint framework in this context. See LaVine v. Blaine Sch. Dist., 257 F.3d 981, 986-87 (9th Cir.2001) (appeal of" }, { "docid": "23530771", "title": "", "text": "followed. Each demanded substantially more money. Ogden balked. Dickstein continued to prosecute the underlying litigation — at the time the parties submitted their appellate briefs, the total amounts recovered on the insurance claims exceeded $60,000,006— but it refused to become entangled in the internecine squabble over the allocation of the proceeds. Citicorp and the FDIC sued Ogden in the district court for breach of contract and unfair business practices. In due course, the FDIC served Dickstein with a subpoena duces tecum that, inter alia, commanded production of communications between it and Ogden. Dickstein objected, citing the attorney-client privilege. The FDIC moved to compel, contending that no privilege attached because Dickstein had represented Ogden and the banks jointly in connection with the litigation against the efficacy insurers. The district court granted this motion by endorsement. Ogden appealed the order,, and the district court stayed production pending resolution of the appeal. II. APPELLATE JURISDICTION There is a threshold issue here. Ogden premises appellate jurisdiction on 28 U.S.C. § 1291, which provides for jurisdiction over appeals taken from “final” decisions and orders of the district courts. Since the order from which Ogden purports to appeal does not conclude the litigation on the merits, it is not final in the stereotypical sense. See United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 14 (1st Cir.1988). Nevertheless, some orders that do not themselves end litigation are deemed final (and thus immediately appealable) under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To qualify for this sanctuary, an order must conclusively resolve an important question distinct from the merits and yet be unreviewable, as a practical matter, in a conventional end-of-case appeal. See Cunningham v. Hamilton County, 527 U.S. 198, 119 S.Ct. 1915, 1920, 144 L.Ed.2d 184 (1999); Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). The compass of this exception is “narrow,” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), and discovery orders generally are" }, { "docid": "7473678", "title": "", "text": "appellate jurisdiction is limited to final orders from the district courts. 28 U.S.C. § 1291 (2000). The district court’s order denying Sudan’s motion to dismiss for lack of personal jurisdiction is not a final order because it does not “end [ ] the litigation on the merits and leave[ ] 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). Nor does it fall within the category of non-final orders that are immediately appealable under the collateral-order doctrine because they are “conclusive, ... resolve important questions separate from the merits, and ... are effectively unreviewable on appeal from the final judgment in the underlying action.” Swint v. Chambers County Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). There is nothing that would prevent effective review of the denial of a motion to dismiss for lack of personal jurisdiction following final judgment in the district court. See Van Cauwenberghe v. Biard, 486 U.S. 517, 526-27, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988); Byrd v.. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 381 n. 1 (5th Cir.1999). Sudan nevertheless argues that we should review this issue under pendent appellate jurisdiction, a judicially-created, discretionary exception to the final judgment requirement. Under this exception, we retain the discretion to review issues that are not otherwise subject to immediate appeal when such issues are so interconnected with immediately ap-pealable issues that they warrant concurrent review. See Taylor, 81 F.3d at 437. Pendent appellate jurisdiction is an exception of limited and narrow application driven by considerations of need, rather than of efficiency. See Montano v. City of Chicago, 375 F.3d 593, 599 (7th Cir.2004); Taylor, 81 F.3d at 437. In Swint, the Supreme Court suggested that pendent appellate jurisdiction is available only (1) when an issue is “inextricably intertwined” with a question that is the proper subject of an immediate appeal; or (2) when review of" } ]

[ { "docid": "7830418", "title": "", "text": "in the instant case, the motion papers containing the admissions with reference thereto, thereby effectually invading the privacy of the individual guaranteed by the Constitution. But, as said by the Supreme Court in Gouled v. United States, supra, “A rule of practice must not be allowed for any technical reason to prevail over a constitutional right.” While the Fourth Amendment guarantees protection against unreasonable searches and seizures, the Fifth Amendment guarantees protection against self-incrimination. At all stages of the trial defendants were entitled to the protection of both these guaranties. They protect all persons, including the accused, suspected, and guilty, as well as the innocent, and should be liberally construed in favor of the individual. Go-Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374; Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409. If, in a case where the search and seizure has been adjudged to be unreasonable and violative of the Fourth Amendment to the Constitution, the motion to suppress with the supporting affidavits, can be used by the government for the purpose of proving the guilt of the defendant, then, in order to avail himself of the guaranty afforded by the Fourth Amendment, he must waive the constitutional guaranty afforded him by the Fifth Amendment. If the government’s contention be sustained, then the moment the defendants in this case made affidavits essential to the assertion of their rights under the Fourth Amendment, they became witnesses against themselves. To so hold would, for practical purposes, render unavailing the guaranties of both the Fourth and Fifth Amendments. Counsel for the government cite as sustaining the ruling of the lower court, the ease of United States v. Lindsly (D. C.) 7 F.(2d)" } ]

[ { "docid": "23524220", "title": "", "text": "information by wiretaps placed on her telephone. As the Supreme Court recently stated, “[standing] concerns, apart from the ‘case’ or ‘controversy’ test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). See Investment Co. Institute v. Camp, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971). Ordinarily a citizen has standing to complain of a violation of Fourth Amendment rights when an illegal search and seizure has been directed against him. Alderman v. United States, supra; Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); See Greenspan and White, Standing to Object to Search and Seizure, 118 U.Pa.L. Rev. 333 (1970). The fact that the question of standing arises in a grand jury investigation does not alter the result. The leading case in this field is Silver-thorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), which included a number of elements similar to those arising here. Frederick and Asa Silverthorne as well as the Silverthorne Company were indicted for conspiracy to defraud the Government by obtaining payment for materials not delivered. Thereafter, papers belonging to Frederick Silverthorne and to the Silverthorne Company were seized in violation of the Fourth Amendment rights of the corporation and the individual, and subsequently returned to the owners only after a petition had been filed by them. Then a grand jury issued a subpoena duces tecum for the production of the very papers previously seized. The Company and Frederick Silverthorne refused to obey the subpoena on the ground that it was based on the poisonous fruits of the improper search and seizure. The district court held both the Company and Frederick Silverthorne in civil contempt. On writ of error to the Supreme Court the judgment of contempt was reversed. Justice Holmes, writing for the Court, stated that" }, { "docid": "3994657", "title": "", "text": "the right to be secure against both “unreasonable searches and seizures.” The fourth amendment guarantees that right to the average citizen as well as to the average criminal. The outcome of this case highlights the anomaly, to which I adverted in my original dissent to the panel opinion, created by the majority’s desire to restrict the scope of fourth amendment protections to cases in which the police, or other state actors, are engaged in investigative activity. That approach would extend greater fourth amendment protection to those suspected of crimes than to those against whom the police harbor no suspicions at all. See 923 F.2d at 1253. Unlike the majority, I do not find this to be a “superficial” concern. Neither, apparently, has the Supreme Court, which has found it necessary on repeated occasions to reiterate that the applicability of the fourth amendment does not turn on whether the victim of a search or seizure was the object of police suspicion. See, e.g., O’Connor v. Ortega, 480 U.S. 709, 714-15, 107 S.Ct. 1492, 1496, 94 L.Ed.2d 714 (1987) (searches and seizures by government employers of the private property' of employees subject to fourth amendment) (plurality opinion); Wyman v. Jones, 400 U.S. 309, 317, 91 S.Ct. 381, 385-86, 27 L.Ed.2d 408 (1971) (“one’s Fourth Amendment protection subsists apart from his being suspected of criminal behavior”); Camara v. Municipal Court, 387 U.S. 523, 530-31, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967) (“even the most law-abiding citizen has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority”); Go-Bart Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931) (“[the fourth amendment] protects all, those suspected or known to be offenders as well as the innocent”); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914) (“This protection reaches all alike, whether accused of crime or not....”). To fully appreciate the incongruous nature of the majority’s position, one must also consider how this case might have played out had the" }, { "docid": "23603249", "title": "", "text": "true in this case that a substantial portion of the 1556-page wiretap transcript represents unauthorized interceptions, it must be emphasized that the rest was monitored and recorded by Customs agents in com pliance both with the statute and the authorizing order. There is as yet very little law to which a court may look for guidance in interpreting the provisions of Title III. It is possible that the great delicacy which inheres in a wiretap situation sets it so far apart from other types of searches and seizures that error as to the conduct of a part of the surveillance renders the entire interception invalid. Judge Waddy thought so, and he suppressed all the evidence. This Court takes issue with this position as having no legal basis, preferring to consider wiretaps within the framework of the general law of search and seizure and to follow its principles. See Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937) and 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Cox, 449 F.2d 679 (10th Cir. 1971). Throughout its history, whenever application of the exclusionary rule has resulted in total suppression of evidence in a criminal prosecution, it has been because the entire search and seizure was considered tainted by some violation of Fourth Amendment rights. See, e. g., Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). This was the case even in Berger v. New York, supra, and Katz v. United States, supra, the two decisions having the most significance in the genesis of constitutionally-approved electronic surveillance. In Berger the New York statute which" }, { "docid": "14488725", "title": "", "text": "admittedly, circumstantial, but it is a factual conclusion that I am authorized to make in ruling on this legal issue and to me there is overwhelming circumstantial evidence that this matter would have been reported to authorities quite apart from the accused’s coerced statement to the Security Police, if not directly from her husband, then from Captain ... in reaction to the confrontations which were likely to continue with her husband. As appealing as this analysis may be, it does not apply the inevitable discovery doctrine as we understand it to have been interpreted by the Court of Military Appeals. Courts are frequently troubled by how to treat evidence associated with an unlawful search or seizure. The most central statement was announced by the Supreme Court in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), where the Court articulated the “fruit of the poisonous tree” doctrine. There are three principal exceptions to total exclusion of derivative evidence. The first exception allows admission where knowledge of the evidence is gained from an “independent source”. Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The second is where the connection between the unlawful act and the evidence has “become so attenuated as to dissipate the taint”. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The third exception, and the one involved in the present case, is the doctrine or rule of inevitable discovery. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The Court of Military Appeals applied the inevitable discovery rule to courts-martial in United States v. Kozak, 12 M.J. 389 (C.M.A.1982). They stated what would allow evidence to be admitted under the inevitable discovery rule: In applying this exception to the exclusionary rule in the future, we will require that after an accused challenges the legality of a search, the prosecution must, by a preponderance of the evidence, establish to the satisfaction of the military judge that when the illegality occurred, the government agents possessed," }, { "docid": "21488179", "title": "", "text": "same five officers maintained a surveillance of the vehicle until they were relieved at 7:00 A.M. by three other police officers and two United States Secret Service Agents. At about 1:30 P.M. the defendants approached the vehicle and were apprehended while placing clothing into the back end. After the defendants were arrested a search of the vehicle was conducted, and numerous counterfeit coins, more than 100 pieces of plaster molds of various denominations, and various pieces of equipment usable as counterfeiting paraphernalia were seized. No search warrant was obtained for the search of the vehicle by either the Minneapolis police officers or the federal agents. The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects* against unreasonable searches and seizures, * * *.” It is the defendants’ contention that this right was violated when the police officers, without a warrant and allegedly without probable cause* searched and seized from their automobile the evidence in question. It is established that whether evidence obtained by state officers and sought to be used against a defendant in a federal prosecution was obtained by an unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). If these actions constitute an illegal search and seizure under the Fourth Amendment then the motion to suppress must be sustained. The Fourth Amendment is in the nature of a guarantee of privacy and may be invoked by any citizen, whether guilty or innocent. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931). However, it is clear that the Fourth Amendment does not forbid all searches and seizures but only such as are unreasonable, and “[t]he propriety of the seizure of property without a search warrant is dependent upon the' facts and circumstances existing at and prior to the time of seizure and known to the seizing officers.” Lawson v. United States, 254" }, { "docid": "15474066", "title": "", "text": "physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505, [81 S.Ct. 679, 5 L.Ed.2d 734], that the Fourth Amendment may protect against the overhearing of verbal statements as well * * *. * * * Thus, verbal evidence which derives so immediately from an unlawful entry * * * is no less the “fruit” of official illegality than the more common tangible fruits of the unwarranted intrusion. (Footnote omitted.) This court has said: “The basic premise of the prohibition against searches * * * was the common-law right of a man to privacy in his home, a right which is one of the indispensable ultimate essentials of our concept of civilization.” District of Columbia v. Little, 85 U.S.App.D.C. 242, 245-246, 178 F.2d 13, 16-17 (1949), aff'd on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950), cited approvingly in Camara v. Municipal Court, supra note 27, 387 U.S. at 530, 87 S.Ct. 1727. . By surreptitious entry we mean either entry by ruse or stratagem or covert entry. The protections of the Fourth Amendment are not limited to homes. As the Supreme Court has stated: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. * * * But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Katz v. United States, supra note 4, 389 U.S. at 351-352, 88 S.Ct. at 511. Moreover, in See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967), the Court stated: In Go-Bart Importing Co. v. United States, 282 U.S. 344, [51 S.Ct. 153, 75 L.Ed. 374]; Amos v. United States, 255 U.S. 313, [41 S.Ct. 266, 65 L.Ed. 654]; and Silverthorne Lumber Co. v. United States, 251 U.S. 385, [40 S.Ct. 182, 64 L.Ed. 319], this Court refused to uphold otherwise unreasonable criminal investigative searches merely because commercial rather than" }, { "docid": "23144748", "title": "", "text": "RONEY, Circuit Judge: Albert Edwards was convicted in a non-jury trial of unlawfully possessing and transporting non-tax paid whiskey. 26 U.S.C. 5205(a) (2) and 5604(a). The sole question on this appeal is whether the District Court improperly denied a motion to suppress evidence of the three 5-gallon containers of whiskey found in the trunk of defendant’s automobile. Holding the search of the automobile trunk and the seizure of the contraband whiskey to be reasonable in constitutional terms, we affirm. There is no doubt in this record that defendant was guilty of the crime charged. Likewise there is no doubt that he would not have been detected in the crime, much less convicted, if the challenged search had not been made. It is well established that neither the evidence found in an illegal search, nor the knowledge acquired from such a search, can be used legally in enforcing the law. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), reh. den., 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Since 1914, the Supreme Court has held that such evidence obtained by federal officers cannot be used in federal courts, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and in 1960 the Court ruled that such evidence obtained by state officers, as in the case at bar, cannot be used in federal prosecutions. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (I960). The evidence is not excluded because it is untrustworthy or lacks credibility, but simply because it was obtained in violation of the Constitution. The exclusionary rule has nothing to do with the reliability of the fact finding process in determining guilt or innocence. It is simply a means of making effective the Fourth Amendment protection against unreasonable searches and seizures. “Its purpose is to deter—to compel respect for the constitutional guaranty in the only" }, { "docid": "22279174", "title": "", "text": "did not exist for the issuance of the search warrant and as this determination is dispositive of the case, we express no opinion on the other issues raised by the appellant. . The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The policy expressed in this amendment finds expression in Rule 41 of the Federal Rules of Criminal Procedure. . The Supreme Court has refused to uphold otherwise unreasonable criminal searches merely because commercial, rather than residential, premises were the object of the police intrusions. See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). . In Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the affidavit in relevant part read: “Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.” . The majority opinion urges that the informant’s statement to the affiant that Spinelli was “operating a handbook and accepting wagers and disseminating wagering information by means of the telephones (numbered) WYdown 4-0029 and WYdown 4-0136,” was a statement of fact and not a conclusion. We believe it to be a statement similar to that in the Aguilar affidavit which the Supreme Court referred to as a conclusion. . Judge Coffin asks a pertinent question in Rosencranz: “ * * • But suppose a commissioner, on the basis" }, { "docid": "5445539", "title": "", "text": "be neither. A listening to all talk inside a house has only one purpose — evidence-gathering. No valid warrant for such listening or for the installation of a dictaphone could be issued. Such conduct is lawless, an unconstitutional violation of the owner’s privacy. The fact that the conversations here took place after On Lee’s arrest emphasizes the fact that their only use would be to convict him. . Although customers may enter a man’s place of business at will, it is still as immune from illegal search and seizure as his kitchen or his bedroom. Many of the leading Supreme Court cases on search and seizure have involved places of business. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Go Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877; Government agents may not break into a store any more than they may break into a home, or force entry against the owner’s will. United States v. Rabstein, D.C.N.J., 41 F.2d 227. They may, of course, enter in the same manner as customers and observe what is going on, including criminal acts. Dillon v. United States, 2 Cir., 279 F. 639. They may seize contraband in plain sight. But they may not enter the establishment and once inside conduct an unauthorized search or seize articles not in plain sight. Thus officers entering a drugstore to make a routine inspection of records could not lawfully sneak into an enclosure marked “Private,” and seize illegally stored liquor hidden inside. In re Lobosco, D.C.E.D. Pa., 11 F.2d 892. A businessman issues an invitation to the public to come into his establishment, but once people come inside he can control their activities while on his premises, and he has the right at any time to order them out. If they stay, after he has ordered them to leave, they become, as of that time, trespassers on" }, { "docid": "22841685", "title": "", "text": "which bars the admission of evidence obtained in violation of the Constitution, extends beyond the direct products of police misconduct to evidence derived from the illegal conduct, or “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). The government argues that the Moulton decision is limited to the exclusion only of defendant’s own statements obtained in violation of his Sixth Amendment right. See id., 474 U.S. at 179, 106 S.Ct. at 488-89. To be sure, the Moulton decision neither involved nor discussed other forms of evidence. The clear implication of the Moulton decision, however, is that courts should apply the exclusionery doctrine under these circumstances. See, e.g., 474 U.S. at 190-92, 106 S.Ct. at 494-95 (Burger, J., dissenting) (arguing that application of the exclusionary rule by the majority made little sense as demonstrated by weighing the costs and benefits of excluding relevant and trustworthy evidence). Assuming the primary illegality can be established, we are persuaded by the host of other Supreme Court decisions which held that “the exclusionary rule applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence.” Nix v. Williams, 467 U.S. 431, 441, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Thus, verbal evidence, including live-witness testimony, which is derived from an unlawful invasion may be “no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Although the cases which mark the origin and development of the “fruit of the poisonous tree” doctrine involved violations of the Fourth Amendment guarantee against searches and seizures, see, e.g., Silverthorne, 251 U.S. 385, 40 S.Ct. 182; Wong Sun, 371 U.S. 471, 83 S.Ct. 407, the doctrine also applies to the fruits of evidence obtained in violation of an accused’s Sixth Amendment right to counsel, see, e.g., United" }, { "docid": "13912653", "title": "", "text": "ownership of the narcotics, claiming that they were left there by a friend, and said that on the day of his arrest he left the apartment at 8 a. m. and did not return until 6 p. m. Objection was made to the receipt of the evidence obtained by the agents, but is was overruled, and an exception taken. There is no right to search a dwelling without a search warrant except as an incident to a lawful arrest, and seizures such as this have been consistently condemned as unlawful. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654) Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409. See, Carroll v. United States, 267 U.S. 132, 151, 153, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; cf. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. Without a warrant, seizure upon the search of a home can only be justified if it was an incident to a contemporaneous arrest there. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 6, 70 L.Ed. 145, 51 A.L.R. 409. ' Appellant was not arrested at the time of the search. The search here could not be justified as an incident to a lawful arrest occurring after the illegal search. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; United States v. Swan (D.C.) 15 F.(2d) 598. Nor was there probable cause to believe that an offense was being committed in the presence of the officers so that an arrest could be lawfully made without a warrant. According to the affidavit and testimony of the government agents, they proceeded first upon advice of an informer and upon the smell of the opium at a crack in the" }, { "docid": "6439050", "title": "", "text": "is likely to frustrate the governmental purpose behind the search. See Schmerber v. California, 384 U.S. 757, 770-771 [86 S.Ct. 1826, 1835-1836, 16 L.Ed.2d 908]. It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement. Thus, we do not find the public need argument dispositive. # $ *}! tji “In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual ...” 387 U.S. at 533-34, 87 S.Ct. at 1733. The Supreme Court promptly decided See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 47, 17 L.Ed.2d 51 (1967), and applied the Camara principles to an inspection of private commercial premises. The Court stated: “In Go-Bart Importing Co. v. United States, 282 U.S. 344 [51 S.Ct. 153, 75 L.Ed. 374]; Amos v. United States, 255 U.S. 313 [41 S.Ct. 266, 65 L.Ed. 654]; and Silverthorne Lumber Co. v. United States, 251 U.S. 385 [40 S.Ct. 182, 64 L.Ed. 319], this Court refused to uphold otherwise unreasonable criminal investigative searches merely because commercial rather than residential premises were the object of the police intrusions. Likewise, we see no justification for so relaxing Fourth Amendment safeguards where the official inspection is intended to aid enforcement of laws prescribing minimum physical standards for commercial premises. As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant.” 387 U.S. at 543, 87 S.Ct. at 1739. However, from the" }, { "docid": "8656659", "title": "", "text": "claimed were admissions. The point is one to be disposed of in the due course of trial and appeal in the state court. Affirmed. “Every person convicted in this state of * * * any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony * * * shall be punished by imprisonment in the state penitentiary for life.” Section 2286, Rem.Rev.Stat., Laws of Washington. The Fourth Amendment to the Constitution of the United States prohibits an unreasonable search and seizure by federal officers. Hence, the federal courts forbid the introduction in court of evidence obtained by an illegal search and seizure if a timely motion for exclusion is made. See People v. Gonzales, 20 Cal. 2d 165, 124 P.2d 44; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L. Ed. 520; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Gouled v. United States, 255 U.S. 298. 302, 41 S.Ct. 261, 05 L. Ed. 647; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.l915C, 1177; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409. Evidence secured by a stare or local officer not acting for the federal government by reason of an illegal search and seizure is admissible in federal courts when properly presented and is not violative of the United States Constitution. Whether such evidence so secured is admissible in a state court is a question for the state courts. See Wigmore § 2184a and cases cited therein. The" }, { "docid": "15474067", "title": "", "text": ". By surreptitious entry we mean either entry by ruse or stratagem or covert entry. The protections of the Fourth Amendment are not limited to homes. As the Supreme Court has stated: What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. * * * But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Katz v. United States, supra note 4, 389 U.S. at 351-352, 88 S.Ct. at 511. Moreover, in See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967), the Court stated: In Go-Bart Importing Co. v. United States, 282 U.S. 344, [51 S.Ct. 153, 75 L.Ed. 374]; Amos v. United States, 255 U.S. 313, [41 S.Ct. 266, 65 L.Ed. 654]; and Silverthorne Lumber Co. v. United States, 251 U.S. 385, [40 S.Ct. 182, 64 L.Ed. 319], this Court refused to uphold otherwise unreasonable criminal investigative searches merely because commercial rather than residential premises were the object of the police intrusions. Likewise, we see no justification for so relaxing Fourth Amendment safeguards where the official inspection is intended to aid enforcement of laws prescribing minimum physical standards for commercial premises. As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant. (Emphasis added.) To the same effect is Mancusi v. DeForte, 392 U.S. 364, 367-370, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). See Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962); United States v. Rosenberg, 416 F.2d 680 (7th Cir. 1969). . The device was a microphone" }, { "docid": "22841686", "title": "", "text": "which held that “the exclusionary rule applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence.” Nix v. Williams, 467 U.S. 431, 441, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Thus, verbal evidence, including live-witness testimony, which is derived from an unlawful invasion may be “no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Although the cases which mark the origin and development of the “fruit of the poisonous tree” doctrine involved violations of the Fourth Amendment guarantee against searches and seizures, see, e.g., Silverthorne, 251 U.S. 385, 40 S.Ct. 182; Wong Sun, 371 U.S. 471, 83 S.Ct. 407, the doctrine also applies to the fruits of evidence obtained in violation of an accused’s Sixth Amendment right to counsel, see, e.g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); as well as violations of the Fifth Amendment. See, e.g., Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The Supreme Court has emphasized, however, that the exclusionary rule “has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048-49, 49 L.Ed.2d 1067 (1976). In situations where the exclusionary rule is applicable, the Court has “declined to adopt a ‘per se or “but for” rule’ that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest [or interrogation].” United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268 (1978). The exclusionary doctrine bars evidence that has been illegally obtained only if the “fruit” is sufficiently connected to the “poisonous tree”: We need not hold that all evidence" }, { "docid": "21488180", "title": "", "text": "obtained by state officers and sought to be used against a defendant in a federal prosecution was obtained by an unreasonable search and seizure is to be judged as if the search and seizure had been made by federal officers. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). If these actions constitute an illegal search and seizure under the Fourth Amendment then the motion to suppress must be sustained. The Fourth Amendment is in the nature of a guarantee of privacy and may be invoked by any citizen, whether guilty or innocent. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931). However, it is clear that the Fourth Amendment does not forbid all searches and seizures but only such as are unreasonable, and “[t]he propriety of the seizure of property without a search warrant is dependent upon the' facts and circumstances existing at and prior to the time of seizure and known to the seizing officers.” Lawson v. United States, 254 F.2d 706, 708 (8th Cir. 1958). It is well established that an automobile comes within the purview of the Fourth Amendment and cannot be unreasonably searched. However, unlike a dwelling house or other structure, Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), a search of an automobile without a warrant and not incident to a lawful arrest may be sustained if probable cause for the search exists. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925). See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407 (1931). This distinction was recognized in a recent Supreme Court decision, Justice Black delivering the unanimous opinion of the Court: Common sense dictates, of course, that questions involving searches of motor cars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For" }, { "docid": "23326089", "title": "", "text": "illegal means is less in a civil case than in criminal eases in which the evidence is suppressed. This Court is persuaded that the evidence seized from the four defendants must be suppressed. No distinction can be made based on the fact that commercial premises were illegally searched as opposed to residential premises. See See v. City of Seattle, supra; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct 182, 64 L.Ed. 319 (1920). The defendants rely on Hinchcliff v. Clarke, supra, in urging that the illegally .seized evidence be suppressed completely .and the plaintiffs barred from reacquiring it by any means. Putting aside for the moment the question of reacquisition, the Court has no doubt that the plaintiffs are barred from profiting in any way by the illegal search and seizure. This is the unmistakable teaching of Silverthorne Lumber Co. v. United States, supra, wherein it is stated: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” There is no dispute among the cases that the government cannot use the information obtained illegally either directly or indirectly to discover other evidence. To .hold that the only prohibition should be against introduction of the evidence at trial would be an empty remedy and an inducement to the violation of constitutional rights. While the Silverthorne case and the other cases establishing this principle were criminal proceedings, there is no rational basis for varying the rule in a civil case. The question of reacquisition of the evidence has not been decisively set-hied by the cases in point. Part of the answer is supplied by Mr. Justice Holmes’ statements in the Silverthorne case: “Of course this does not mean that facts thus obtained become sacred and inaccessible. If knowledge of them is gained" }, { "docid": "5445538", "title": "", "text": "70 S.Ct. 468, 94 L.Ed. 599: “Distinction between ‘inspection’ and ‘search’ of a home has no basis in semantics, in constitutional history, or in reason. “Inspect’ means to look at, and ‘search’ means to look for. To say that the people, in requiring adoption of the Fourth Amendment, meant to restrict invasion of their' homes if government officials were looking for something, but not to restrict it if the officials were merely looking, is to ascribe to the electorate of that day and to the several legislatures and the Congress a degree of irrationality not otherwise observable in their dealings with potential tyranny.” . A dictaphone, by its very nature, conducts an exploratory search for evi dence of a house-owner’s guilt. Such exploratory searches for evidence are forbidden, with or without warrant, by the Fourth Amendment. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231. A search warrant must describe the things to be seized, and those things can be only (1) instrumentalities of the crime or (b) contraband. Speech can be neither. A listening to all talk inside a house has only one purpose — evidence-gathering. No valid warrant for such listening or for the installation of a dictaphone could be issued. Such conduct is lawless, an unconstitutional violation of the owner’s privacy. The fact that the conversations here took place after On Lee’s arrest emphasizes the fact that their only use would be to convict him. . Although customers may enter a man’s place of business at will, it is still as immune from illegal search and seizure as his kitchen or his bedroom. Many of the leading Supreme Court cases on search and seizure have involved places of business. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Go Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877; Government agents may not break into a" }, { "docid": "23603250", "title": "", "text": "New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Cox, 449 F.2d 679 (10th Cir. 1971). Throughout its history, whenever application of the exclusionary rule has resulted in total suppression of evidence in a criminal prosecution, it has been because the entire search and seizure was considered tainted by some violation of Fourth Amendment rights. See, e. g., Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). This was the case even in Berger v. New York, supra, and Katz v. United States, supra, the two decisions having the most significance in the genesis of constitutionally-approved electronic surveillance. In Berger the New York statute which authorized the electronic eavesdrop was adjudged un- ' constitutional so that no search pursuant to that statute could be valid either in whole or in part. Likewise in Katz an otherwise validly executed “bug” was considered a violation of the Fourth Amendment because not authorized by a judge. The entire search was void ab initio. The case presently before this Court is of a different nature. Here we have a constitutional statute and a valid warrant (authorizing order) issued thereunder. In its execution, however, some, but not all, of the evidence seized lay beyond the scope of the warrant. There are few cases involving analogous facts, and other than Scott, supra, none involves a wiretap. In Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) a prohibition agent had obtained from a United States Commissioner a warrant for the search of petitioner’s residence. In it the things to be seized were particularly described —-intoxicating liquors and articles for their manufacture. However, in carrying out the search the agents also seized" }, { "docid": "23326088", "title": "", "text": "person and property should be liberally construed.’ 116 U.S., at 635, [6 S.Ct. 535.]” The decisions in Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, supra, holding that search warrants must be obtained to inspect homes and business premises, may be taken to indicate that the right to be free from unconsented searches is the foremost concern of the Fourth Amendment and that the use of illegally seized evidence in a criminal prosecution is merely a common incident of the search which is proscribed. The cases extending the exclusionary rule to civil proceedings are based on the conclusion that it is the right of privacy that is protected and that there exists no valid distinction for varying the exclusionary rule in a civil case. In Hinchcliff v. Clarke, 230 F.Supp. 91 (N.D.Ohio 1963), rev’d. on other grounds, 371 F.2d 697 (6th Cir. 1967), the District Court pointed out that society’s interest in proof obtained by illegal means is less in a civil case than in criminal eases in which the evidence is suppressed. This Court is persuaded that the evidence seized from the four defendants must be suppressed. No distinction can be made based on the fact that commercial premises were illegally searched as opposed to residential premises. See See v. City of Seattle, supra; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct 182, 64 L.Ed. 319 (1920). The defendants rely on Hinchcliff v. Clarke, supra, in urging that the illegally .seized evidence be suppressed completely .and the plaintiffs barred from reacquiring it by any means. Putting aside for the moment the question of reacquisition, the Court has no doubt that the plaintiffs are barred from profiting in any way by the illegal search and seizure. This is the unmistakable teaching of Silverthorne Lumber Co. v. United" } ]

[ { "docid": "23182731", "title": "", "text": "and hence cannot be a proper basis for a defense of res adjudicata. We disagree. One of the strongest policies a court can have is that of determining the scope of its own judgments. Cf. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 1958, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953. It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified and enforced by the state acting through its own judicial establishment. But we think it would be strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights. The Erie doctrine, [Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188], is not applicable here; and the judgment in favor of Western Pacific is affirmed. As the claims asserted against Western Pacific in the two actions were to all intents and purposes identical, we have no alternative other than to hold the first judgment to be an absolute bar to the maintenance of the second action. Cromwell v. County of Sac., 1876, 94 U.S. 351, 24 L.Ed. 195; Curacao Trading Co. v. William Stake & Co., S.D.N.Y., 1945, 61 F.Supp. 181. Compare Olwell v. Hopkins, 1946, 28 Cal.2d 147, 168 P.2d 972; Restatement, Judgments § 48 (1942). See also U.S.Const., Art. IV, § 1; 28 U.S.C. § 1738. The defense of Hettinger rests upon a different basis. As he was not served with process and did not appear in the California action, no binding adjudication was made in his favor when the case was dismissed. Can his plea of collateral estoppel be sustained? We think not. Regardless of which law we turn to to decide this question, the result is the same. Although in New" } ]

[ { "docid": "22908012", "title": "", "text": "137 (1975). In that diversity case we held that in diversity jurisdiction, as in federal-question jurisdiction, the federal doctrine of res judicata governs the question of whether a federal court is bound by the prior judgment of another federal court. Appellant argues that Aerojet controls the present case because actions in diversity are comparable to Tort Claims actions, since in each instance the federal court is generally bound to apply state law. If in a diversity case a federal court is nevertheless bound to give federal res judicata effect to a prior federal judgment, appellant urges, then by parity of reasoning a federal court should be similarly bound by a prior federal judgment in a Tort Claims action. On its part, the United States urges that Aerojet does not govern the present case. Its first argument is based on a distinction between res judicata and collateral estoppel. It points out that Aerojet concerned res judicata, whereas the present case concerns collateral estoppel. Thus, it argues, even supposing that Aerojet applied to Tort Claims actions, it would not control the present case. While the term “res judicata” in its broadest sense encompasses collateral estoppel, in a narrower sense these two phrases do carry different although related meanings. Under the principles of “res judicata” in the narrower sense, a judgment in a prior suit between the same parties bars a suit on the same cause of action not only as to all matters offered at the first proceeding, but also as to all issues that could have been litigated. Collateral estoppel, however, precludes reiitigation only of those issues actually litigated in the original action, whether or not the second suit is based on the same cause of action. Moch v. East Baton Rouge Parish School Board, 548 F.2d 594, 596 (5th Cir. 1977), and cases cited therein. However, in Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir. 1976), it was held that the Aerojet doctrine applied to collateral estoppel as well as to res judicata in diversity cases. We see no cogent reason for distinguishing" }, { "docid": "23372811", "title": "", "text": "federal question, it must apply federal common law. Rufenacht v. Iowa Beef Processors, Inc., 656 F.2d 198, 202 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 462 (1982); Stovall v. Price Waterhouse Co., 652 F.2d 537, 540 (5th Cir.1981); Commercial Box & Lumber Co., Inc. v. Uniroyal, Inc., 623 F.2d 371, 373 (5th Cir.1980); Southern Pacific Transportation Co. v. Smith Material, 616 F.2d 111, 115 (5th Cir.1980); Johnson v. United States, 576 F.2d 606, 611 (5th Cir.1978), cert. denied, 451 U.S. 1018, 101 S.Ct. 3007, 69 L.Ed.2d 389 (1981); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff'd without opinion, 537 F.2d 1142 (5th Cir.1976). See also Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). The general rule in this circuit, and throughout the nation, is that changes in the law after a final judgment do not prevent the application of res judicata and collateral estoppel, even though the grounds on which the decision was based are subsequently overruled. Clouatre v. Houston Fire & Casualty Co., 229 F.2d 596, 598 n. 4 (5th Cir.1956). See 18 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 4415, at 130 (1981); e.g., Nilsen v. City of Moss Point, 701 F.2d 556, 564 (5th Cir.1983) (en banc); Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981); Harrington v. Vandalia-Butler Bd. of Education, 649 F.2d 434, 438 (6th Cir.1981); Stewart Securities Corp. v. Guaranty Trust Co., 597 F.2d 240, 242 (10th Cir.1979); Barzin v. Selective Service Local Bd. No. 14, 446 F.2d 1382, 1383 (3rd Cir.1971); Ripperger v. A.C. Allyn & Co., 113 F.2d 332, 333 (2nd Cir.), cert. denied, 311 U.S. 695, 61 S.Ct. 136, 85 L.Ed. 450 (1940). As the Supreme Court has stated: [n]or are the res judicata consequences of a final unappealed judgment altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case____ ‘[t]he indulgence of a contrary view would result in creating elements of uncertainty and confusion and in undermining the" }, { "docid": "6735945", "title": "", "text": "first case, this case should be barred by res judicata or in the alternative under the doctrine of collateral estoppel. The district court granted Uniroyal’s motion on the grounds that the action was barred by res judicata. Although state law governs whether a state court judgment bars a subsequent federal diversity action, Cleckner v. Republic Van & Storage Co., Inc., 556 F.2d 766, 768 (5th Cir. 1977), the situation is different when the first suit was brought in federal court. When a prior action is brought in diversity in federal court, the federal law of res judicata governs in a second suit brought in diversity. Aerojet-General Corp. v. Askew, 511 F.2d 710, 715 (5th Cir. 1975), appeal dismissed, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). Even though the second action in Aerojet was brought under federal question as well as diversity, the above rule applies even when both the previous and subsequent actions are based solely on diversity. Id. at 718. See also Johnson v. United States, 576 F.2d 606, 610 (5th Cir. 1978); Cleckner v. Republic Van & Storage Co., Inc., 556 F.2d at 769 n.4. Thus, this court is clearly bound by the federal law of res judicata. Under federal law, a prior suit which concluded with a final judgment on the merits rendered by a court of competent jurisdiction acts as an absolute bar to a subsequent action between the same parties based on the same action. Kilgoar v. Colbert County Board of Education, 578 F.2d 1033, 1035 (5th Cir. 1978). The federal law of res judicata also establishes that a judgment in a prior suit bars a subsequent cause of action between the same parties not only as to all matters litigated in the first suit but also as to all issues that could have been litigated regarding the same cause of action. Johnson v. United States, 576 F.2d at 611; Moch v. East Baton Rouge Parish School Board, 548 F.2d at 594, 596 (5th Cir. 1977), cert. denied, 434 U.S. 859, 98 S.Ct. 183, 54 L.Ed.2d 132 (1977). Clearly, the prior action" }, { "docid": "22893035", "title": "", "text": "and issue preclusion are the currently accepted terms for two different applications of the doctrine of res judicata. United States v. Athlone Indus., Inc., 746 F.2d 977, 983 n. 4 (3d Cir.1984). Issue preclusion is also referred to as collateral estoppel. Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir.1988). . Courts applying federal law generally hold that preclusion rules are the sort of procedural issues to which the Erie doctrine does not apply. As one court has remarked, \"[o]ne of the strongest policies a court can have is that of determining the scope of its own judgments. It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. ... [W]e think it would be a strange doctrine to allow a state to nullify the judgments of federal courts_” Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir.1962) (citations omitted) (holding limited as recognized in Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 713 n. 3 (2d Cir.1977)). See also Aerojet-General Corp. v. Askew, 511 F.2d 710, 715-18 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). Some courts apply federal law only to preclusion issues which are considered not to involve questions of substantive law. See, e.g., Answering Serv., Inc. v. Egan, 728 F.2d 1500, 1503-06 (D.C.Cir.1984). The example generally given of a substantive issue is the question of “privity.” See, e.g., Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 386-87 (10th Cir.1987); Harnett v. Billman, 800 F.2d 1308, 1312-13 (4th Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987). . Lubrizol cites to Northern Assurance Co. v. Grand View Building Ass'n, 203 U.S. 106, 27 S.Ct. 27, 51 L.Ed. 109 (1906), which permitted a suit for reformation of a contract despite an earlier judgment on the meaning of the contract. That case, however, was decided before the merger" }, { "docid": "23263537", "title": "", "text": "Oats Company which are claimed to be at variance with its final opinion upon which judgment has been entered in this cause. Conceding that inconsistencies may exist, we know of no rule of law that prohibits the court from modifying or correcting its own views during the progress of litigation and prior to final judgment. Despite Quaker’s vigorous arguments, we fail to see any legally cognizable considerations of. unfairness in invoking collateral estoppel against it. The important, ultimate question is whether this court, in its final judgment, has correctly interpreted the true foundation of its holding in Workman. We believe that we have. On appeal, Quaker contests the use of offensive collateral estoppel based upon the Workman decision to establish the existence of a valid bilateral contract for a fixed term of employment, and the subsidiary holdings in Workman that (1) the regular retirement program and the inactive status program were not mutually exclusive retirement plans, and (2) the unique features of the inactive service plan relieved Workman (and hence the Hicks plaintiffs) of any duty to mitigate damages. We begin by noting that the federal law of collateral estoppel applies in this diversity action. Were we concerned with the collateral estoppel effects of a prior, state court determination, we would use the state’s law of collateral estoppel, but where the prior determination was also a federal diversity action, federal common law principles will apply. Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir. 1981); Southern Pacific Transportation Co. v. Smith Material Corp., 616 F.2d 111 (5th Cir. 1980); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir. 1976); see Johnson v. United States, 576 F.2d 606 (5th Cir. 1978); Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). This point is important, because unlike federal common law, Mississippi state law does not permit the offensive use of collateral estoppel. Compare Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), with Ditta v. City of" }, { "docid": "21884370", "title": "", "text": "was noted therein that the prayed-for declaratory judgment would function “no differently ... than collateral estoppel used offensively,” and the Court thus altered the declaratory judgment which the district court had rendered by making it conform to the requirements of the federal rule as to issue preclusion. The Court found support for its decision in Johnson, Willis, and Aero-jet-General. Even to the extent that it may be argued that this Court has not previously squarely decided the issue currently before us (and, as indicated, this would be a very slender reed in the face of the various decisions which have treated this subject), we are persuaded that the better policy is that federal standards as to the applicability of collateral estoppel prevail in cases such as this one in which defendants-appellees seek to invoke the doctrine of collateral estoppel in one federal forum on the basis of facts decided previously in another case in the federal forum. See R. Degnan, Federalized Res Judicata, 85 Yale L.J. 741,746 (1976) (praising Aerojet-General, but doubting the necessity or wisdom of distinguishing collateral estoppel cases from those covered under the actual holding). As Judge Medina has stated: One of the strongest policies a court can have is that of determining the scope of its own judgments. ... It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified, and enforced by the state acting through its own judicial establishments. But we think it would be strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights. The Erie doctrine [citations omitted] is not applicable here.. . . Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962); see Aerojet-General, supra, 511 F.2d at 716-717; see also Degnan, supra," }, { "docid": "22908013", "title": "", "text": "would not control the present case. While the term “res judicata” in its broadest sense encompasses collateral estoppel, in a narrower sense these two phrases do carry different although related meanings. Under the principles of “res judicata” in the narrower sense, a judgment in a prior suit between the same parties bars a suit on the same cause of action not only as to all matters offered at the first proceeding, but also as to all issues that could have been litigated. Collateral estoppel, however, precludes reiitigation only of those issues actually litigated in the original action, whether or not the second suit is based on the same cause of action. Moch v. East Baton Rouge Parish School Board, 548 F.2d 594, 596 (5th Cir. 1977), and cases cited therein. However, in Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir. 1976), it was held that the Aerojet doctrine applied to collateral estoppel as well as to res judicata in diversity cases. We see no cogent reason for distinguishing these doctrines in connection with the preclusive effects of a prior federal judgment on a subsequent federal suit, and we regard Willis as settling the matter insofar as diversity cases are concerned. The present case is not in diversity jurisdiction, however, and the United States’ second and more troubling argument relates to this point. It argues that despite similarities between federal tort claims actions and actions in diversity jurisdiction, federal courts in Tort Claims actions are required by statute to follow state law. It refers particularly to Richards v. United States, supra. In Richards the Supreme Court ruled that federal courts, in deciding actions under the Tort Claims Act, were required to apply the conflict-of-laws rules of the state where the act or omission occurred. This is, of course, also true of federal courts acting in diversity jurisdiction, Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); but in Richards the Court stated that it did not rely on conflicts principles developed for diversity actions. This was" }, { "docid": "22908021", "title": "", "text": "cases are equally present in Tort Claims actions. First, Aerojet particularly stressed that: The importance of preserving the integrity of federal court judgments cannot be overemphasized — out of respect for the federal courts and for the policy of bringing litigation conclusively to an end. If state courts could eradicate the force and effect of federal court judgments through supervening interpretations of the state law of res judicatá, federal courts would not be a reliable forum for final adjudication of a diversity litigant’s claims. 511 F.2d at 716. This consideration applies equally to Tort Claims actions. Second, Aerojet noted that a number of federal procedural issues affect the application of res judicata in diversity cases. Similarly, as noted above, a number of federal matters affect federal court decisions in Tort Claims actions; as in Aerojet, We see no persuasive reason to look to state law for some elements of res judicata ... in light of the prominent influence of federal law on other elements of the doctrine. To do so would sacrifice the uniformity of the law which federal courts must apply. 511 F.2d at 717. In Aerojet we quoted at length the case of Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir. 1962), and we again note its reasoning: One of the strongest policies a court can have is that of determining the scope of its own judgments. [Citations omitted] It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified and enforced by the state acting through its own judicial establishment. But we think it would be strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights. We see no reason for distinguishing Tort Claims actions from diversity actions" }, { "docid": "2427665", "title": "", "text": "made in Flatt is correct. That is, under any standard, federal law applies. Aerojet-General Corporation v. Askew, 511 F.2d 710 (5th Cir. 1975); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.) aff’d without comment, 587 F.2d 1142 (5th Cir. 1976). Because of that, the Court is convinced that the application of collateral estoppel in these cases is correct. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); see also Mooney v. Fibreboard Corporation, 485 F.Supp. 242 (D.C. Tex.1980); and Flatt, supra. Assuming, arguendo, that the application of federal law is incorrect, the mutuality arguments raised by the Defendants are without merit as a matter of state law. Strict mutuality, or an absolute mirroring of parties, is a legal concept subject to constant erosion and qualification. Comment, “Collateral Estoppel: The Changing Role of Mutuality,” 41 Missouri L.E. 521 (1976). The demise of mutuality began with the concept of respondeat superior, and the effect given to prior adjudications against employees on employers. Consequently, the courts search for the familiar exception to the rule of mutuality — privity. Texas has joined the other jurisdictions in taking a more liberal view of mutuality through the privity exception. The Corpus Christi Court of Appeals recently summarized the development in the Texas courts: Originally, mutuality was essential to the invocation of collateral estoppel. However, the Texas Courts have apparently abandoned the requirement of mutuality and have retained the requirement of privity only to the party against whom the plea of collateral estoppel is made ... So long as an essential issue of fact has been determined and adjudicated, the judgment therein will estop the parties or their privies from relitigating the same issues in a subsequent suit.... Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195 (Tex.Civ.App.—Corpus Christi 1978, no writ), (citations omitted.) This represents a conclusion of the effect of two Texas cases on the mutuality issue. Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.1971); Hardy v. Fleming, 553 S.W.2d 790 (Tex.Civ.App.—El Paso 1977, writ ref'd n. r. e.). Under the law of Texas, there can be no objection to" }, { "docid": "16291817", "title": "", "text": "the owner of the same. Likewise, the judge of any court in which the trial of any criminal action for theft or any other illegal acquisition of property which is by law a penal offense is pending may, upon hearing, if it is proved to the satisfaction of the judge of said court that any person is a true owner of the property alleged to have been stolen, and which is in possession of a peace officer, by written order, direct the property to be restored to such owner. . Under Texas law, a mechanic’s lien cannot be asserted against a stolen vehicle unless the repairs were authorized by the true owner himself. Drake Ins. Co. v. King, 606 S.W.2d 812 (Tex. 1980). . The judgment in Reimer v. Sandefer could have no offensive collateral estoppel effect against defendants in this action, since they were not parties to the litigation deciding in favor of Reimer. “In both the offensive and defensive use situations, the party against whom the estoppel is asserted has litigated and lost in the earlier action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 650, 58 L.Ed.2d 552 (1979). . When a federal court sitting in diversity is considering the collateral estoppel effect of a prior federal judgment, this circuit applies federal common law. Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir. 1981); Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir. 1976). . Of course, in a federal question case relying on a prior federal judgment, the federal rules of collateral estoppel and res judicata apply. Blonder-Tongue, supra, 402 U.S. at 324, n.12, 91 S.Ct. at 1440, n.12. The problem here is whether in a federal question case relying on a previous state court judgment, § 1738 requires a federal court to use the res judicata and collateral estoppel doctrines of the state in which the prior judgment was entered, because this would" }, { "docid": "21884367", "title": "", "text": "now extant. Note, Collateral Estoppel— the Multiple Tort Claimant Anomaly, 41 Miss.L.J. 497, 498 (1970). Federal collateral estoppel rules, on the other hand, allow invocation and imposition of the doctrine upon the showing of three necessary criteria: 1) that the issue at stake be identical to the one involved in the prior litigation; 2) that the issue have been actually litigated. in the prior litigation; and 3) that the determination of the issue in the prior litigation have been a critical and necessary part of the judgment in that earlier action. Johnson v. United States, 576 F.2d 606, 615 (5th Cir. 1978); see Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Thus, it is clear that a determination of whether the federal or the Mississippi standard relative to collateral estoppel is to be applied in this case determines the disposition of the motion to dismiss. Chief Judge Keady found, and the record amply supports his conclusions, that the requirements for federal collateral estoppel were met by the determination of the relevant facts in the earlier litigation. If, however, the Mississippi rule were the proper one, there could be no preclusion of the claims appellants now seek to maintain because of the lack of privity between Stovall and Price Waterhouse in the Illinois Central case. We believe that the prior decisions of this Court on the doctrines of res judicata and collateral estoppel require application of the federal rule when, as in this case, a party seeks to estop a claim from being raised in a diversity action brought in federal court on the basis of an earlier determination made in a federal court sitting pursuant to its diversity jurisdiction (irrespective of the fact that the new complaint also alleges a cause of action pursuant to a federal regulatory statute). It is unquestioned that this Court has unambiguously held that federal law determines the res judicata effect given a prior decision of a federal tribunal regardless of the bases of the court’s jurisdiction. Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.) reh. den." }, { "docid": "17903703", "title": "", "text": "under federal question jurisdiction, is offered here as collateral estoppel in Suit No. 2, a diversity case. Although Reimer suggests as a general proposition that federal law applies when deciding the effect of a prior federal judgment, our research turns up no recent Fifth Circuit cases squarely addressing the issue as framed above. “Federal law clearly governs the question whether a prior federal court judgment based on federal question jurisdiction is res judicata in a case also brought . .. under federal question jurisdiction.” Aerojet-General Corp. v. Askew, 511 F.2d 710, 715 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). See also Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84 (5th Cir.), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977) (res judicata effect of prior case brought under federal question jurisdiction with pendent state claims governed by federal law in subsequent injunction action treated as “supplemental or ancillary” to first action for jurisdiction purposes). Federal law also governs when the first suit is a diversity suit, and the second suit is brought under both diversity and federal question jurisdiction “whether considered as a federal question case or a diversity case.” Aerojet-General, supra, at 718. See also Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir.1981). Finally, we have repeatedly held that federal res judicata rules apply in a diversity case in determining the effect of a prior diversity case. Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 337 (5th Cir.1982); Hicks v. Quaker Oats Co., 662 F.2d 1158, 1166 (5th Cir.1981); Rufenacht v. Iowa Beef Processors, Inc., 656 F.2d 198, 202 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 462 (1982); Commercial Box & Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 373 (5th Cir.1980); Cleckner v. Republic Van & Storage Co., 556 F.2d 766, 769 n. 4 (5th Cir.1977); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir.1976). These rules are the same for collateral estoppel as for other forms of res judicata. Stovall, supra, at" }, { "docid": "3058104", "title": "", "text": "v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir.), cert. denied, 459 U.S. 1087,103 S.Ct. 570, 74 L.Ed.2d 932 (1982); Gatewood v. Fiat, S.P.A., 617 F.2d 820, 826 n. 11 (D.C.Cir.1980). Conversely, courts of appeals in several other circuits have held that federal law should govern because. Silcox v. United Trucking Service, Inc., 687 F.2d 848, 852 (6th Cir.1982); Aerojet-General Corp. v. Askew, 511 F.2d 710, 715-18 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); Kern v. Hettinger, 303 F.2d 333, 340 (2d Cir.1962); see also Fraley v. American Cyanamid Co., 570 F.Supp. 497, 501-02 (D.C.Colo.1983); Restatement (Second) of Judgments § 87 (1982). The Court of Appeals for the Seventh Circuit in at least two cases has applied, without explanation, the state law on res judicata in situations like the present one. Gasbarra v. Park-Ohio Industries, Inc., 655 F.2d 119,121 (7th Cir.1981); Morgan v. Inter-Continental Trading Corp., 360 F.2d 853, 855 (7th Cir.1966). A recent Seventh Circuit decision suggests, however, that a federal court sitting in a diversity action should apply federal law to determine the preclusive effect due a prior federal diversity judgment. Morris v. Spratt, 768 F.2d 879, 882 (7th Cir.1985). This court is not required to take a position on this issue; the result in the case at bar is identical under both federal law and Wisconsin law. The broad concept of res judicata encompasses the doctrines of claim preclusion, or what is generally referred to as res judicata, and issue preclusion, generally termed collateral estoppel. See Jones v. City of Alton, 757 F.2d 878, 879 n. 1 (7th Cir.1985); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4402 (1981). (Hereinafter, claim and issue preclusion will be referred to respectively as res judicata and collateral estoppel). Under res judicata, a final judgment on the merits is a complete bar to future claims by parties or their privies based on the same cause of action. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Collateral estoppel bars the relitigation" }, { "docid": "21884369", "title": "", "text": "514 F.2d 1072 (5th Cir.), cert. den’d 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). A later decision affirmed a district court which held that there should be no different result in collateral estoppel cases. Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion 537 F.2d 1142 (5th Cir. 1978). Still another panel with which we agree subsequently observed in dictum that it saw “no cogent reason for distinguishing those doctrines [of res judicata and collateral estoppel] in connection with the preclu-sive effects of a prior federal judgment on a subsequent federal suit and we regard Willis as settling the matter insofar as diversity cases are concerned.” Johnson v. United States, supra, 567 F.2d at 611. To hold otherwise would undermine the integrity and predictability of federal judgments. Most recently, this Court in a declaratory judgment action reaffirmed the rule and held that “federal procedure governs this diversity action and determines the applicability of collateral estoppel.” Southern Pacific Transportation Co. v. Smith Material Corp., 616 F.2d 111, 115 (5th Cir. 1980). It was noted therein that the prayed-for declaratory judgment would function “no differently ... than collateral estoppel used offensively,” and the Court thus altered the declaratory judgment which the district court had rendered by making it conform to the requirements of the federal rule as to issue preclusion. The Court found support for its decision in Johnson, Willis, and Aero-jet-General. Even to the extent that it may be argued that this Court has not previously squarely decided the issue currently before us (and, as indicated, this would be a very slender reed in the face of the various decisions which have treated this subject), we are persuaded that the better policy is that federal standards as to the applicability of collateral estoppel prevail in cases such as this one in which defendants-appellees seek to invoke the doctrine of collateral estoppel in one federal forum on the basis of facts decided previously in another case in the federal forum. See R. Degnan, Federalized Res Judicata, 85 Yale L.J. 741,746 (1976) (praising Aerojet-General, but doubting the necessity or" }, { "docid": "16291818", "title": "", "text": "in the earlier action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 650, 58 L.Ed.2d 552 (1979). . When a federal court sitting in diversity is considering the collateral estoppel effect of a prior federal judgment, this circuit applies federal common law. Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir. 1981); Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir. 1976). . Of course, in a federal question case relying on a prior federal judgment, the federal rules of collateral estoppel and res judicata apply. Blonder-Tongue, supra, 402 U.S. at 324, n.12, 91 S.Ct. at 1440, n.12. The problem here is whether in a federal question case relying on a previous state court judgment, § 1738 requires a federal court to use the res judicata and collateral estoppel doctrines of the state in which the prior judgment was entered, because this would give the judgment the same full faith and credit it would have in the courts of that state. Erie considerations are not relevant here, since the state which produced the prior judgment is not necessarily the state in which the federal court sits. . The question is, however, a puzzling one. The Supreme Court in Blonder-Tongue stated that in nondiversity cases since Erie, the federal law of collateral estoppel applies. 402 U.S. at 324 n.12. 91 S.Ct. at 1440, n.12. On the other hand, § 1738 is part of the federal rules of res judicata, and it directs federal courts to look to state law to some extent. However, in Montana v. U. S., 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), a federal constitutional question had been litigated in the state courts of Montana. A subsequent litigation, in which the use of the Montana judgment as an estoppel was at issue, was heard by a three judge federal district court. On appeal, the Supreme Court looked to federal precedent for its decision," }, { "docid": "17903704", "title": "", "text": "a diversity suit, and the second suit is brought under both diversity and federal question jurisdiction “whether considered as a federal question case or a diversity case.” Aerojet-General, supra, at 718. See also Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir.1981). Finally, we have repeatedly held that federal res judicata rules apply in a diversity case in determining the effect of a prior diversity case. Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 337 (5th Cir.1982); Hicks v. Quaker Oats Co., 662 F.2d 1158, 1166 (5th Cir.1981); Rufenacht v. Iowa Beef Processors, Inc., 656 F.2d 198, 202 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 462 (1982); Commercial Box & Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 373 (5th Cir.1980); Cleckner v. Republic Van & Storage Co., 556 F.2d 766, 769 n. 4 (5th Cir.1977); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir.1976). These rules are the same for collateral estoppel as for other forms of res judicata. Stovall, supra, at 540; Johnson v. United States, 576 F.2d 606, 611 (5th Cir.1978), cert. denied, 451 U.S. 1018, 101 S.Ct. 3007, 69 L.Ed.2d 389 (1981); Willis, supra, at 266. In short, the law of this circuit is that federal law governs in the federal question/federal question, diversity/diversity, and diversity/federal question contexts. Since our precedents clearly require the use of federal law in the diversity/diversity context, federal law should apply a fortiori to the federal question/diversity case presented here. If anything, concerns over respecting state courts and policies are less serious in the federal question/diversity context than in the diversity/diversity context. Correspondingly, concerns with preserving the integrity of federal judgments and procedure expressed in our decisions are if anything greater here than in the diversity/diversity context. We note further that the Erie doctrine’s policy of preventing forum shopping is not in jeopardy, since state courts generally are required to follow federal rules in deciding the preclusive effect of a prior federal question judgment of a federal court. 18 C. Wright, A. Miller & E. Cooper, Federal Practice and" }, { "docid": "21884368", "title": "", "text": "of the relevant facts in the earlier litigation. If, however, the Mississippi rule were the proper one, there could be no preclusion of the claims appellants now seek to maintain because of the lack of privity between Stovall and Price Waterhouse in the Illinois Central case. We believe that the prior decisions of this Court on the doctrines of res judicata and collateral estoppel require application of the federal rule when, as in this case, a party seeks to estop a claim from being raised in a diversity action brought in federal court on the basis of an earlier determination made in a federal court sitting pursuant to its diversity jurisdiction (irrespective of the fact that the new complaint also alleges a cause of action pursuant to a federal regulatory statute). It is unquestioned that this Court has unambiguously held that federal law determines the res judicata effect given a prior decision of a federal tribunal regardless of the bases of the court’s jurisdiction. Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.) reh. den. 514 F.2d 1072 (5th Cir.), cert. den’d 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). A later decision affirmed a district court which held that there should be no different result in collateral estoppel cases. Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion 537 F.2d 1142 (5th Cir. 1978). Still another panel with which we agree subsequently observed in dictum that it saw “no cogent reason for distinguishing those doctrines [of res judicata and collateral estoppel] in connection with the preclu-sive effects of a prior federal judgment on a subsequent federal suit and we regard Willis as settling the matter insofar as diversity cases are concerned.” Johnson v. United States, supra, 567 F.2d at 611. To hold otherwise would undermine the integrity and predictability of federal judgments. Most recently, this Court in a declaratory judgment action reaffirmed the rule and held that “federal procedure governs this diversity action and determines the applicability of collateral estoppel.” Southern Pacific Transportation Co. v. Smith Material Corp., 616 F.2d 111, 115 (5th Cir. 1980). It" }, { "docid": "23372810", "title": "", "text": "court addressed a statute of limitations issue and recognized that the one year provision was applicable to the case. Second, even assuming that the six year statute of limitations is applicable to conversion of engine part designs, the alleged change in the law would be irrelevant because it would have occurred after a final judgment had been rendered. Appellant argues that when a change in law occurs between the time of two suits, res judicata and collateral estoppel cannot be used to bar the second suit. Appellant cites many federal cases for this proposition and appellee mistakenly assumes that Alabama law controls this issue. State law governs whether or not a state court judgment bars a subsequent federal diversity action. Commercial Box & Lumber Co., Inc. v. Uniroyal, Inc., 623 F.2d 371, 373 (5th Cir.1980); Cleckner v. Republic Van & Storage Co., Inc., 556 F.2d 766, 768 (5th Cir.1977). When a federal court sitting in diversity examines the collateral estoppel or res judicata effect of a prior federal judgment, based either on diversity or a federal question, it must apply federal common law. Rufenacht v. Iowa Beef Processors, Inc., 656 F.2d 198, 202 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 462 (1982); Stovall v. Price Waterhouse Co., 652 F.2d 537, 540 (5th Cir.1981); Commercial Box & Lumber Co., Inc. v. Uniroyal, Inc., 623 F.2d 371, 373 (5th Cir.1980); Southern Pacific Transportation Co. v. Smith Material, 616 F.2d 111, 115 (5th Cir.1980); Johnson v. United States, 576 F.2d 606, 611 (5th Cir.1978), cert. denied, 451 U.S. 1018, 101 S.Ct. 3007, 69 L.Ed.2d 389 (1981); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff'd without opinion, 537 F.2d 1142 (5th Cir.1976). See also Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). The general rule in this circuit, and throughout the nation, is that changes in the law after a final judgment do not prevent the application of res judicata and collateral estoppel, even though the grounds on which the decision was based are subsequently overruled." }, { "docid": "23263538", "title": "", "text": "duty to mitigate damages. We begin by noting that the federal law of collateral estoppel applies in this diversity action. Were we concerned with the collateral estoppel effects of a prior, state court determination, we would use the state’s law of collateral estoppel, but where the prior determination was also a federal diversity action, federal common law principles will apply. Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir. 1981); Southern Pacific Transportation Co. v. Smith Material Corp., 616 F.2d 111 (5th Cir. 1980); Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff’d without opinion, 537 F.2d 1142 (5th Cir. 1976); see Johnson v. United States, 576 F.2d 606 (5th Cir. 1978); Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). This point is important, because unlike federal common law, Mississippi state law does not permit the offensive use of collateral estoppel. Compare Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), with Ditta v. City of Clinton, 391 So.2d 627 (Miss.1980), as modified on denial of rehearing, id. (Miss.1981). Federal common law permits the use of collateral estoppel upon the showing of three necessary criteria: (1) that the issue at stake be identical to the one involved in prior litigation; (2) that the issue has been actually litigated in the prior litigation; and (3) that the determination of the issue in the prior litigation has been a critical and necessary part of the judgment in that earlier action. Stovall, supra, at 540; Johnson, supra, at 615. Quaker does not contest that the issue of the enforceability of the Crutchfield letter was litigated in Workman. Rather, Quaker argues that collateral estoppel should not apply because (1) the issue decided was one of law and (2) the holding was an alternative ground of decision. Collateral Estoppel as to Issues of Law Quaker contends that estoppel should not apply because the erroneous holding of contractual liability is a pure question of law, and collateral estoppel does not apply to unmixed questions of law. For" }, { "docid": "1022977", "title": "", "text": "estoppel. II. Freeman’s suit was dismissed in federal court. Consequently, although both it and the present suit are Mississippi diversity cases, “the doctrines of res judicata and collateral estoppel require application of the federal rule when, as in this case, a party seeks to estop a claim from being raised in a diversity action brought in federal court on the basis of an earlier determination made in a federal court sitting pursuant to its diversity jurisdiction.” Stovall v. Price Waterhouse Co., 652 F.2d 537 (5th Cir.1981). Federal law determines the res judicata and collateral effect given a prior decision of a federal tribunal, regardless of the bases of the federal court’s jurisdiction. Id. “Federal common law permits the use of collateral estoppel upon the showing of three necessary criteria[.]” Hicks v. Quaker Oats Company, 662 F.2d 1158, 1166 (5th Cir.1981). See also Holmes v. Jones, 738 F.2d 711, 713 (5th Cir.1984). The three criteria are: (1) that the issue at stake be identical to the one involved in prior litigation; (2) that the issue has been actually litigated in the prior litigation; and (3) that the determination of the issue in the prior litigation has been a critical and necessary part of the judgment in that earlier action. Hicks, supra, 662 F.2d at 1166; Holmes, supra, 738 F.2d at 713. All three of these requirements have been satisfied in the present case. The issue here, as in the first case, was based on Deis’ negligence. This issue was actually litigated in the first case, and its determination there was a critical and necessary part of the judgment. “[A] right, question, or fact distinctly put in issue and directly determined as a ground of recovery by a court of competent jurisdiction collaterally estops a party or his privy from relitigating the issue in a subsequent action.” Hardy v. Johns-Manville Sales Corporation, 681 F.2d 334, 338 (5th Cir.1982). Freeman was clearly a party to the earlier suit for his own personal injuries. Despite Freeman’s contention that the circumstance in the present suit that he is acting in a different capacity (i.e., as" } ]

[ { "docid": "15167356", "title": "", "text": "[here] was confirmed, not just suspected .... ” (R. Vol. I, Doc. 31 at 8.) We agree with the government and the district court — the use of handcuffs was reasonable under these circumstances, coming as it did after the discovery of a controlled substance (and with knowledge of two outstanding warrants for the unlicensed driver). The use of handcuffs did not elevate this detention into an arrest. 2. Search of Albert’s Person The next question is whether the search of Albert’s person was reasonable under the circumstances. The district court did not evaluate the reasonableness of the search. “During an investigative detention, police officers are authorized to take reasonable steps necessary to secure their safety and maintain the status quo. In some circumstances, these safety measures may include a pat-down search for weapons.” Garcia, 459 F.3d at 1063; see also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (“When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, he may conduct a limited protective search for concealed weapons.”) (quotations omitted). “[A]n individual’s known connection with drug transactions is a factor supporting reasonable suspicion to frisk that individual for weapons.” Garcia, 459 F.3d at 1065; see, e.g., Johnson, 364 F.3d at 1194-95 (concluding a frisk was permissible “[b]ecause [the officer] reasonably suspected that Johnson might be involved in drug dealing, kidnapping, or prostitution,” which are crimes “typically associated with some sort of weapon, often guns”); United States v. $109,179 in United States Currency, 228 F.3d 1080, 1086 (9th Cir.2000) (finding a frisk justified and asserting “[b]ecause the police reasonably suspected [the defendant] of dealing in narcotics, it was not unreasonable to believe that he might be armed”). However, even in the context of a known drug transaction, a Terry frisk is only valid if it is confined to a search for weapons because “[t]he purpose of the limited pat-down search is not to discover evidence of a crime, but to allow the officer to" } ]

[ { "docid": "23034962", "title": "", "text": "that officers’ display of firearms and use of handcuffs was reasonable when they were informed that the suspect had threatened to kill someone and they observed the suspect violently pounding his fists in his truck. In United States v. Merritt, 695 F.2d 1263, 1273-74 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983), the police acted reasonably when they pointed a shotgun at the suspect when they had reason to believe that he was a murderer and heavily armed. However in King, we found that an officer acted unreasonably when she drew her gun and had other officers handcuff the defendant when she noticed that the defendant, who was only creating a traffic disturbance by honking his horn, lawfully had a weapon in the car. 990 F.2d at 1563. In this ease, the government does not try to elaborate why it believes the quantum of force used to secure Melendez, Perez, and Angel was reasonable. The officers did testify in the suppression hearing that they tried to separate the cars and the suspects in order to promote safety and that they restrained the suspects to “make it safe.” However, they gave no reasons why the circumstances of the stop reasonably necessitated the display of firearms and the use of handcuffs. We note that this stop was based on suspicion of trafficking drugs. Drugs and guns and violence often go together, and thus this might be a factor tending to support an officer’s claim of reasonableness. However, there was no evidence or testimony from the police that they had reason to believe these particular suspects had guns or were violent or that the circumstances of this particular encounter warranted the unusual intrusiveness of handcuffing the defendants during the Terry stop. In the absence of such evidence, the naked fact that drugs are suspected will not support a per se justification for use of guns and handcuffs in a Terry stop. Cf. United States v. Stewart, 867 F.2d 581, 585-86 (10th Cir.1989) (general observations about the conduct of drug dealers will not support exigent circumstances excusing police" }, { "docid": "5541923", "title": "", "text": "the driver was wanted in connection with a murder investigation, as well as being involved in the narcotics transaction. See id. at 975-76. The Court found that such measures were appropriate and did not elevate the investigative detention to the level of an arrest. See id. at 976. The Court recognized that, “[i]n ‘most scenarios,’ when officers effectuate what would otherwise be considered a Terry stop by pointing guns at a suspect, that stop is elevated to an arrest, which requires probable cause.” 374 F.Supp.2d at 974. See United States v. Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir.1998) (“[T]he use of firearms, handcuffs, and other forceful techniques are justified only by probable cause or when ‘the circumstances reasonably warrant such measures.’ ”)(quoting United States v. Perdue, 8 F.3d at 1462-63). There “exist[s], however, a limited set of circumstances in which officers may draw their guns at a suspect without transforming the stop into an arrest. ‘The use of guns in connection with a stop is permissible where the police reasonably believe the weapons are necessary for their protection.’ ” United States v. Perea, 374 F.Supp.2d at 974 (quoting United States v. Perdue, 8 F.3d at 1462). See also United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir.1993) (upholding reasonableness of stop when officers detained the defendant at gunpoint and placed him in handcuffs where suspect had threatened to kill someone and was pounding interior of truck with his fists); United States v. Lechuga, 925 F.2d 1035, 1040 (7th Cir.1991); United States v. Alexander, 907 F.2d 269, 272-73 (2d Cir.1990). Similarly, there are circumstances in which a seizure is not an arrest merely because the subject of the detention is placed in handcuffs. See United States v. Merkley, 988 F.2d at 1064; United States v. Miller, 974 F.2d 953, 957 (8th Cir.1992) (“Numerous cases have held that a police officer’s use of handcuffs can be a reasonable precaution during a Terry stop.”); United States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir.1989) (“The handcuffing of Hastamorir constituted a Terry stop, and was a reasonable action designed to provide for the" }, { "docid": "2401873", "title": "", "text": "before frisking him. The pat-down revealed that Glenna also had a small, explosive “cherry bomb” in a pants pocket. In view of the Teletype indicating that Glenna was potentially armed and dangerous, coupled with the initial discovery of a loaded clip of ammunition on his person, we concluded that it was reasonable to believe that Glenna posed a risk to the safety of the officer who initiated the stop and the others who soon arrived on the scene. That risk entitled officers not only to handcuff Glenna while he was patted down (whereupon the “cherry bomb” was discovered) but to keep him in handcuffs while the officers attempted to confirm or dispel the suspicions of criminal activity raised by the Teletype (which efforts ultimately led to the discovery of a pipe bomb in the van Glenna was driving): [W]e are unwilling to hold that under Terry, the placing of a suspect in hand cuffs without probable cause to arrest is always unlawful. If, in a rare case, “common sense and ordinary human experience” convince us that an officer believed reasonably that an investigative stop could be effectuated safely only in this manner, see [United States v.] Sharpe, 470 U.S. [675] at 685, 105 S.Ct. [1568] at 1574, 84 L.Ed.2d 605 [ (1985) ], “we will not substitute our judgment for that of the officers as to the best methods to investigate.” See [United States v.] Boden, 854 F.2d [988] at 993[(7th Cir.1988) ]. 878 F.2d at 972-73 (emphasis in original). Subsequent cases have likewise sustained the use of handcuffs during Terry stops when the circumstances suggested either that an individual stopped for questioning might have a weapon or that he might be involved in criminal activity often associated with violence. See, e.g., United States v. Smith, 697 F.3d 625, 632 (7th Cir.2012) (suspected bank robber left alone with single agent while other agents chased his fleeing accomplices); United States v. Hopewell, 498 Fed.Appx. 609, 611 (7th Cir.2012) (non-precedential decision) (officers had tip defendant might be concealing gun); Bullock, 632 F.3d at 1016 (officers were searching for drugs, and drugs are" }, { "docid": "7468503", "title": "", "text": "App. at 96. But in this case, the patrol officers were only given instructions “to stop the car.” Id. As the district court noted, there is nothing in. the record that suggests that the patrol officer who stopped Salas-Garcia “drew or displayed his weapon, forced Defendant to the ground, or employed restraints other than handcuffs.” Aplt. App. at 16-17. Given the limited amount of information that the Task Force agents and uniformed patrol officers had regarding Salas-Garcia, placing him in handcuffs was reasonable under the circumstances to ensure both officer and public safety. We have noted that “ ‘[a]n officer in today’s reality has an objective, reasonable basis to fear for his or her life; every time a motorist is stopped.’ ” United States v. Albert, 579 F.3d 1188, 1194 (10th Cir.2009) (quoting United States v. Holt, 264 F.3d 1215, 1223 (10th Cir.2001) (en banc), abrogated on other grounds by United States v. Stewart, 473 F.3d 1265, 1268-69 (10th Cir.2007)). In order to ensure the safety of police officers, the Supreme Court has held that “limited intrusion[s]” are reasonable when officers have reason to fear for their safety. Adams v. Williams, 407 U.S. 143, 147-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See also United States v. Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir.1998) (“[T]he use of firearms, handcuffs, and other forceful techniques are justified only by probable cause or when the circumstances reasonably warrant such measures.”) (quotations and citations omitted). Further, this court has recognized following the issuance of Melendez-Garcia that “[a] connection with drug transactions can support a reasonable suspicion that a suspect is armed and dangerous.” United States v. Garcia, 459 F.3d 1059, 1064 (10th Cir.2006). See also Albert, 579 F.3d at 1194 (concluding that evidence of drug possession further elevated the danger of the police-suspect encounter); United States v. Johnson, 364 F.3d 1185, 1194-95 (10th Cir.2004) (recognizing that drug dealing is a crime “typically associated with some sort of weapon, often guns”). The officers in the present case knew that the drug transaction was to involve one kilogram of cocaine, and given the large amount and" }, { "docid": "5564078", "title": "", "text": "vehicles were ordered to leave the vehicles one at a time. Id. at 1497. After individually exiting the vehicle, each occupant was frisked, handcuffed, and told to kneel on the pavement. Id. During this procedure, which took about five minutes for each occupant, the officers pointed their guns at the occupant. Id. As each vehicle was emptied, it was inspected for further occupants. Id. at 1497-98. The officers then questioned the six occupants further about their possession of the vehicles. Id. at 1498. About 5:00 a.m. the officers learned that Smith was not in fact a wanted felon. Id. We held: The reasonable belief that the defendants posed a danger justified the procedures in this case. The officers were entitled to display their weapons, to separate defendants from their vehicles, to conduct a pat down search, and to restrain the defendants with handcuffs until the officers had completed secur ing all the defendants. For their own safety, the officers were entitled to remove the defendants one by one, which, because of the number of defendants, necessarily took time. We therefore conclude that although bordering on an illegal arrest, the precautionary measures of force employed by the officers were reasonable under the circumstances. Id. at 1506 (quotation marks, citations, and brackets omitted). More troubling was that several of the occupants continued to be handcuffed after the officers had determined that none of the six was armed. Id. at 1507. We wrote: Although finding it a close question, we hold that, at least until 5:00 a.m. when the officers received confirmation that defendant Smith was not the individual wanted in the NCIC teletype, the use of handcuffs was reasonable. The number of suspects, the fact that the encounter took place at night, and the reasonable suspicion that one of the suspects was a wanted felon, justified the officers in keeping the defendants in handcuffs for the officers’ safety. However, once the officers learned that Smith was not the individual identified in the NCIC teletype, the continued use of handcuffs constituted an unlawful arrest. Id. In short, the use of handcuffs was appropriate" }, { "docid": "9730329", "title": "", "text": "The vehicles windows, however, were tinted and the officers did not know who or how many people were inside. Furthermore, the officers believed that the driver was wanted in connection with a murder investigation, as well as being involved in a narcotics transaction. See id. at 975-76. The Court found that such measures were appropriate and did not elevate the investigative detention to the level of an arrest. See id. at 976. The Court recognized that, “[i]n ‘most scenarios,’ when officers effectuate what would otherwise be considered a Terry stop by pointing guns at a suspect, that stop is elevated to an arrest, which requires probable cause.” 374 F.Supp.2d at 974. See United States v. Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir.1998)(“[T]he use of firearms, handcuffs, and other forceful techniques are justified only by probable cause or when ‘the circumstances reasonably warrant such measures.’ ”). There “exist[s], however, a limited set of circumstances in which officers may draw their guns at a suspect without transforming the stop into an arrest. ‘The use of guns in connection with a stop is permissible where the police reasonably believe the weapons are necessary for their protection.’ ” United States v. Perea, 374 F.Supp.2d at 974 (quoting United States v. Perdue, 8 F.3d at 1462). See also United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir.l993)(upholding reasonableness of stop when officers detained the defendant at gunpoint and placed him in handcuffs where suspect had threatened to kill someone and was pounding interior of truck with his fists); United States v. Le chuga, 925 F.2d 1035, 1040 (7th Cir.1991); United States v. Alexander, 907 F.2d 269, 272-73 (2d Cir.1990). Similarly, there are circumstances in which a seizure is not an arrest merely because the subject of the detention is placed in handcuffs. See United States v. Merkley, 988 F.2d at 1064; United States v. Miller, 974 F.2d 953, 957 (8th Cir.l992)(“Numerous cases have held that a police officer’s use of handcuffs can be a reasonable precaution during a Terry stop.”); United States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir.1989)(“The handcuffing of Hastamorir constituted" }, { "docid": "5541926", "title": "", "text": "‘the facts available to the officer would warrant a man of reasonable caution in the belief that the action taken was appropriate,’ ” id. After reviewing the relevant law, the Tenth Circuit held: [T]here was no evidence or testimony from the police that they had reason to believe these particular suspects had guns or were violent or that the circumstances of this particular encounter warranted the unusual intrusiveness of handcuffing the defendants during the Terry stop. In the absence of such evidence, the naked fact that drugs are suspected will not support a per se justification for use of guns or handcuffs in a Terry stop. 28 F.3d at 1052-53. The Tenth Circuit therefore held that the detention was an arrest, rather than an investigative detention, and, because the government made no argument that the officers had probable cause, it held that the arrest was unlawful. See id. at 1053. Thus, it appears that, in the Tenth Circuit, there must be something more than the fact that the underlying crime was violent to justify officers’ use of handcuffs and/or handguns during an investigative detention. Without such additional justification, the guns and handcuffs transform that investigative detention into an arrest. LAW REGARDING EXCESSIVE USE OF FORCE Courts analyze Fourth-Amendment excessive force claims “under the ‘objective reasonableness’ standard that governs other Fourth Amendment inquiries.” Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir.2009). See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”). The Tenth Circuit has explained: Reasonableness is evaluated under a totality of the circumstances approach which requires that we consider the following factors: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Weigel v. Broad, 544 F.3d 1143, 1151-52 (10th" }, { "docid": "8751859", "title": "", "text": "The district court further held that the police’s conduct during the Terry stop, “although bordering on an illegal arrest,. ... [was] reasonable under the circumstances.” Edwards, slip op. at 9. We disagree. The district court correctly noted that, under our precedents, police may draw guns and use handcuffs during a Terry stop when, under the totality of the circumstances, they reasonably believe such steps to be necessary to protect themselves. Edwards, slip op. at 8-9; see United States v. Perdue, 8 F.3d 1455, 1462-63 (10th Cir.1993) (canvassing precedents); but see United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir.1994) (“the naked fact that drugs are suspected will not support a per se justification for use of guns and handcuffs in a Terry stop”). As we said in Perdue, “[t]he Fourth Amendment does not require that officers unnecessarily risk their lives when encountering a suspect whom they reasonably believe to be armed and dangerous.” Perdue, 8 F.3d at 1463. The district court also correctly noted that “[l]ength of time is the most important consideration in determining whether a restraint is a stop or a full-fledged arrest.” Edwards, slip op. at 9 (citing United States v. Serna-Barreto, 842 F.2d 965, 967 (7th Cir.1988)). However, we disagree with its conclusion, which we review de novo, that the 45 minute detention to which Edwards was subjected “was reasonable under the circumstances.” Id. The record indicates that Edwards cooperated fully with the police officers, immediately consenting to searches of his ear and his person (neither of which produced any evidence of illegal activity or danger to police). At the conclusion of these searches, the police no longer possessed the “reasonable suspicion” which initially justified the stop. At that point, further forcible detention of Edwards amounted to an arrest, though probable cause had not yet obtained. The conclusion that the streetside stop was an arrest is bolstered by Officer Fuller’s testimony that he actually told Edwards at the beginning of the streetside stop that “we’re going to take you into custody at this point in time, [we] want to detain you ... [so] just follow" }, { "docid": "9730374", "title": "", "text": "questioning of him to establish his identity. See id. The Defendants in this case might have truly believed that the Smiths were somehow linked to Lollis. The Defendants do not dispute, however, that they knew that none of the persons that exited the Smith residence was Lollis. The Defendants also do not dispute that the Smiths had been compliant up to the point that they exited their home, that they made no threatening movements, and that they complied with the officers’ instructions after they exited the house. The Court finds that the Defendants have provided “no evidence or testimony ... that they had reason to believe that these particular suspects had guns or were violent or that the circumstances of this particular encounter warranted the unusual intrusiveness of handcuffing ... during the Terry stop.” United States v. Melendez-Garcia, 28 F.3d at 1052-53. At best, the officers reasonably believed that the persons exiting the house were somehow linked to Lollis. United States v. Melendez-Garcia, however, appears to foreclose the notion that it is inherently reasonable to use handcuffs and draw guns in a proteetive/investigative detention based on the inference that, because the person might be linked to something that frequently involves guns or violence, the suspect might be dangerous. See United States v. Melendez-Garcia, 28 F.3d at 1053 (“In the absence of [evidence that the particular suspects are armed or violent, or that the situation in particularly dangerous], the naked fact that drugs are suspected will not support a per se justification for use of guns or handcuffs in a Terry stop.”). The Court will not hold that it is permissible, in the absence of probable cause, to handcuff anyone who is suspected of being somehow connected to a murder suspect. More is required. The Court therefore finds that the use of these intrusive techniques during the Smiths’ detention transformed that detention into an arrest, and, because the officers had no probable cause to make an arrest, that arrest was unlawful. The other cases cited by the Defendants do not support their position any better than United States v. Maddox. For" }, { "docid": "5541925", "title": "", "text": "safety of the agents.”). United States v. Perea was one of those unique cases, because the police had reasonable cause to believe that the person that they were detaining was the suspect that they sought to arrest — a man wanted for murder whom, it was believed, might be armed and dangerous. See United States v. Perea, 374 F.Supp.2d at 976. In United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir.1994), the Tenth Circuit placed upon the government the “burden of demonstrating that the seizure it seeks to justify on the basis of reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Id. at 1052. While the Tenth Circuit recognized that there is no bright-line rule to guide whether the scope of police conduct stayed within the bounds of an investigative stop, see id. at 1052, it held that “the use of force such as handcuffs and firearms is a far greater level of intrusion [than the ordinary investigative stop], and requires the government to demonstrate that ‘the facts available to the officer would warrant a man of reasonable caution in the belief that the action taken was appropriate,’ ” id. After reviewing the relevant law, the Tenth Circuit held: [T]here was no evidence or testimony from the police that they had reason to believe these particular suspects had guns or were violent or that the circumstances of this particular encounter warranted the unusual intrusiveness of handcuffing the defendants during the Terry stop. In the absence of such evidence, the naked fact that drugs are suspected will not support a per se justification for use of guns or handcuffs in a Terry stop. 28 F.3d at 1052-53. The Tenth Circuit therefore held that the detention was an arrest, rather than an investigative detention, and, because the government made no argument that the officers had probable cause, it held that the arrest was unlawful. See id. at 1053. Thus, it appears that, in the Tenth Circuit, there must be something more than the fact that the underlying crime was violent to justify officers’" }, { "docid": "23034961", "title": "", "text": "appropriate.” King, 990 F.2d at 1562 (quoting Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880). We have held in the past that the use of firearms, handcuffs, and other forceful techniques does not necessarily transform a Terry detention into a full custodial arrest— for which probable cause is required — when “the circumstances reasonably warrant such measures.” Perdue, 8 F.3d at 1463-64. Thus, in Perdue we found that officers acted reasonably when they ordered the occupants out of a car at gunpoint and forced them to lie on the ground when the police had information to suggest that the suspects might be armed, it was late at night in a remote area, and there were only two officers. 8 F.3d at 1463 (“Although effectuating a Terry stop by pointing guns at a suspect may elevate a seizure to an arrest in most scenarios, it was not unreasonable under these circumstances ... [T]he officers had reason to be concerned for their safety....”). In United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir.1993), we concluded that officers’ display of firearms and use of handcuffs was reasonable when they were informed that the suspect had threatened to kill someone and they observed the suspect violently pounding his fists in his truck. In United States v. Merritt, 695 F.2d 1263, 1273-74 (10th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983), the police acted reasonably when they pointed a shotgun at the suspect when they had reason to believe that he was a murderer and heavily armed. However in King, we found that an officer acted unreasonably when she drew her gun and had other officers handcuff the defendant when she noticed that the defendant, who was only creating a traffic disturbance by honking his horn, lawfully had a weapon in the car. 990 F.2d at 1563. In this ease, the government does not try to elaborate why it believes the quantum of force used to secure Melendez, Perez, and Angel was reasonable. The officers did testify in the suppression hearing that they tried to separate the cars" }, { "docid": "9730402", "title": "", "text": "an arrest); United States v. Gama-Bastidas, 142 F.3d at 1240 (“the use of firearms, handcuffs, and other forceful techniques are justified only by probable cause or when ‘the circumstances reasonably warrant such measures.’ ”); United States v. Melendez-Garcia, 28 F.3d at 1052-53 (holding that detention turned into an arrest when handcuffs and guns were used in the absence of evidence that the officers had reason to believe the individuals detained were particularly dangerous); United States v. Perea, 374 F.Supp.2d at 974-76 (holding sei zure of man thought to be armed-and-dangerous murder suspect, by use of handcuffs and drawn guns, did not rise to the level of an arrest). The Court also finds that this detention, occurring over a block from where the Defendants suspected that Lollis was hiding, could not reasonably be called a protective detention. For McDonnell to validly detain N. Smith in the manner that he did, he would need probable cause to believe that N. Smith was engaged in some criminal conduct. Because he had no such probable cause, this detention constituted an unlawful arrest as a matter of law. Furthermore, because the parties agree that McDonnell was acting on Kenny’s direct orders in apprehending N. Smith, detaining him, and searching his vehicle, the Court finds that Kenny is also liable for N. Smith’s unlawful arrest. The Court believes that this encounter and the Defendants’ arguments in support of it shed light on what went wrong on the morning of October 23, 2007. The officers concluded that they had found where a wanted murder suspect was possibly located, and they were convinced that they would apprehend him. None of the Defendants ever sought a search warrant, even though one would be necessary to enter the Smith’s residence to apprehend Lollis inside. See United States v. Cavely, 318 F.3d 987, 993 (10th Cir.2003)(holding that, absent exigent circumstances, officers have no authority to search a third-party’s home, even if they have reason to suspect that the subject of an arrest warrant is inside)(citing Steagald v. United States, 451 U.S. 204, 205-06, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)). The" }, { "docid": "5564079", "title": "", "text": "necessarily took time. We therefore conclude that although bordering on an illegal arrest, the precautionary measures of force employed by the officers were reasonable under the circumstances. Id. at 1506 (quotation marks, citations, and brackets omitted). More troubling was that several of the occupants continued to be handcuffed after the officers had determined that none of the six was armed. Id. at 1507. We wrote: Although finding it a close question, we hold that, at least until 5:00 a.m. when the officers received confirmation that defendant Smith was not the individual wanted in the NCIC teletype, the use of handcuffs was reasonable. The number of suspects, the fact that the encounter took place at night, and the reasonable suspicion that one of the suspects was a wanted felon, justified the officers in keeping the defendants in handcuffs for the officers’ safety. However, once the officers learned that Smith was not the individual identified in the NCIC teletype, the continued use of handcuffs constituted an unlawful arrest. Id. In short, the use of handcuffs was appropriate as long as there was a reasonable, articulable ground for fearing danger from the suspects. By that standard, the handcuffing of Defendant was legitimate in this ease. The officers had received a reliable report that Defendant was armed with a particularly dangerous weapon. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3, at 88-89 (3d ed.1996) (noting presumptive reliability of citizen informers). When they stopped and frisked him — actions not challenged on appeal — the ammunition on his person provided solid confirmation that he had been carrying a weapon. Although he did not have a weapon on his person, the officers had temporarily lost sight of him during the pursuit, so it could have been hidden nearby. Further confirmation of the existence of a weapon came from Defendant’s statement that “the” weapon was in his apartment. Even if Defendant, who was being watched by some officers outside, did not pose a risk of grabbing the gun in the apartment, the officers could be somewhat skeptical that the" }, { "docid": "15167353", "title": "", "text": "or current criminal activity that may be discovered during the course of the stop. 264 F.3d 1215, 1223 (10th Cir.2001) (en banc); see also Maryland v. Wilson, 519 U.S. 408, 413, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (“[T]he fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.”). After arresting Sermon (but before Albert was handcuffed), DeNeff discovered evidence of a new crime — drug possession — further elevating the danger of the encounter. See United States v. Garcia, 459 F.3d 1059, 1064 (10th Cir.2006) (“[A] connection with drug transactions can support a reasonable suspicion that a suspect is armed and dangerous.”); United States v. Johnson, 364 F.3d 1185, 1194-95 (10th Cir.2004) (recognizing drug dealing is a crime “typically associated with some sort of weapon, often guns”); United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) (“Because weapons and violence are frequently associated with drug transactions, it is reasonable for an officer to believe a person may be armed and dangerous when the person is suspected of being involved in a drug transaction”). Despite being justifiably cautious, the officers did not draw their weapons, force Albert to the ground or employ restraints other than the handcuffs. Though we have not confronted a materially indistinguishable case, we have approved the use of handcuffs in the context of a Terry stop. See Neff, 300 F.3d at 1221 (use of handcuffs during a brief investigative detention reasonable where the police encountered a suspect believed to be carrying a dangerous coneealable weapon); Perdue, 8 F.3d at 1463 (use of firearms and handcuffs reasonable where police encountered a suspect believed to be armed and dangerous); United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir.1993) (use of firearms and handcuffs reasonable where police encountered a suspect who had threatened to kill someone and was acting violently); United States v. Merritt, 695 F.2d 1263, 1274 (10th Cir.1982) (use of firearms and handcuffs reasonable where police encountered a murder suspect believed to be heavily armed accompanied by others who could possibly lend support). Albert" }, { "docid": "7468504", "title": "", "text": "“limited intrusion[s]” are reasonable when officers have reason to fear for their safety. Adams v. Williams, 407 U.S. 143, 147-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See also United States v. Gama-Bastidas, 142 F.3d 1233, 1240 (10th Cir.1998) (“[T]he use of firearms, handcuffs, and other forceful techniques are justified only by probable cause or when the circumstances reasonably warrant such measures.”) (quotations and citations omitted). Further, this court has recognized following the issuance of Melendez-Garcia that “[a] connection with drug transactions can support a reasonable suspicion that a suspect is armed and dangerous.” United States v. Garcia, 459 F.3d 1059, 1064 (10th Cir.2006). See also Albert, 579 F.3d at 1194 (concluding that evidence of drug possession further elevated the danger of the police-suspect encounter); United States v. Johnson, 364 F.3d 1185, 1194-95 (10th Cir.2004) (recognizing that drug dealing is a crime “typically associated with some sort of weapon, often guns”). The officers in the present case knew that the drug transaction was to involve one kilogram of cocaine, and given the large amount and value of drugs to be exchanged, it was reasonable for the officers to believe that the parties may be armed. See Aplee. Supp. App. at 95 (Agent Davis testifying that he has seen “hundreds and hundreds of times” that “drugs and guns go hand in hand”). See also United States v. Coslet, 987 F.2d 1493, 1495 (10th Cir.1993) (“Guns are a ubiquitous part of the drug trade, facilitating transactions by providing protection to dealers, drugs and money.”). Agent Davis explained in his testimony that the patrol officers were ordered to stop the truck because the truck was involved in a drug transaction. The officers knew from their observations and experience that the drug transaction involved a sophisticated, two-car operation. The officers were informed by the confidential informant that one of the vehicles that they were following — either the red Dodge truck driven by Salas-Garcia or the red Chrysler driven by Castenada — carried one kilogram of cocaine. The officers also knew that the drug transaction was to take place in the parking lot of" }, { "docid": "9730373", "title": "", "text": "when handcuffs and guns were used in the absence of evidence that the officers had reason to believe the individuals detained were particularly dangerous); United States v. Perea, 374 F.Supp.2d at 974-76 (holding seizure of man thought to be armed-and-dangerous murder suspect, by use of handcuffs and drawn guns, did not rise to the level of an arrest). This case is distinguishable from the only case in which this Court has held that handcuffs did not transform the detention into an arrest. In United States v. Perea, the officers involved could not see who was inside the suspect vehicle until he exited because of heavy window tinting. See 374 F.Supp.2d at 977. Furthermore, even after he exited, the officers believed that the individual was the one wanted in connection with both a murder and an illegal narcotics transaction, creating a reasonable belief that the suspect exiting the vehicle might be armed and dangerous. See id. Under those circumstances, the Court held that the officers were reasonable in handcuffing Perea while they conducted a brief investigative questioning of him to establish his identity. See id. The Defendants in this case might have truly believed that the Smiths were somehow linked to Lollis. The Defendants do not dispute, however, that they knew that none of the persons that exited the Smith residence was Lollis. The Defendants also do not dispute that the Smiths had been compliant up to the point that they exited their home, that they made no threatening movements, and that they complied with the officers’ instructions after they exited the house. The Court finds that the Defendants have provided “no evidence or testimony ... that they had reason to believe that these particular suspects had guns or were violent or that the circumstances of this particular encounter warranted the unusual intrusiveness of handcuffing ... during the Terry stop.” United States v. Melendez-Garcia, 28 F.3d at 1052-53. At best, the officers reasonably believed that the persons exiting the house were somehow linked to Lollis. United States v. Melendez-Garcia, however, appears to foreclose the notion that it is inherently reasonable to" }, { "docid": "15425720", "title": "", "text": "F.3d 818, 824 (7th Cir.2008). We have previously found that using handcuffs, placing suspects in police cars, drawing weapons, and other measures of force more traditionally associated with arrests may be proper during an investigatory detention, depending on the circumstances. Tilmon, 19 F.3d at 1224-25, 1228; see also United States v. Shoals, 478 F.3d 850, 853 (7th Cir.2007) (stating that police officers do not convert Terry stop into full custodial arrest by drawing their weapons or handcuffing the subject, particularly where the situation is inherently dangerous); Chaidez, 919 F.2d at 1198-99 (detention did not turn into arrest even though agents drew guns, took car keys, gave Miranda warnings, took one defendant to police van to sign consent-to-search form, and detained defendants for ten to fifteen minutes during search of house; the intrusion was less than that involved in an arrest). Given that officers were conducting a search for drugs, it was reasonable to place Bullock in handcuffs and in the squad car for their safety while they pursued their investigation. Even though officers patted down Bullock and did not discover any weapons, the officers could take precautions against potentially violent behavior. Drug crimes are associated with dangerous and violent behavior and warrant a higher degree of precaution. United States v. Askew, 403 F.3d 496, 508 (7th Cir.2005) (“Drug arrests can warrant intrusive tactics because of their inherent danger.”). Officers could reasonably believe that Bullock was potentially dangerous and a flight risk because of his awareness of the search warrant, his association with the residence, and the officers’ reasonable suspicion that he was involved in narcotics distribution. His detention in the squad car was therefore reasonable. This is not a case where officers attempted to exploit the situation by asking Bullock questions or requesting to search his belongings. Cf. Royer, 460 U.S. at 504-05, 103 S.Ct. 1319 (holding legitimate law enforcement purposes which justified detention in the first instance were not furthered by removing suspect to small interrogation-type room in an apparent effort to obtain his consent to search his luggage). Rather, the restraints were used to meet the officers’ legitimate" }, { "docid": "9730401", "title": "", "text": "the seizure. The Defendants contend that they were concerned that whoever was in the white vehicle might spot the police cars creating the perimeter and warn Lollis, allowing him to escape or to prepare for the officers’ arrival, increasing the danger. The problem is that the seizure did not end after that brief encounter. Instead, McDonnell placed N. Smith in handcuffs, placed him in a squad car, and transported him to the command post where a blonde officer, alleged to be Kukowski, questioned him. He was detained from approximately 1:30 a.m. until 2:32 . a.m., and was in handcuffs throughout that time. The Court finds that this hour-long detention, in handcuffs, exceeds the scope of a permissible investigatory detention. See United States v. Place, 462 U.S. at 699, 103 S.Ct. 2637 (finding a 90-minute detention of a persons luggage exceeded permissible length of investigatory detention); United States v. Maddox, 388 F.3d at 1367-68 (finding that investigative seizure for 30 minutes, without handcuffing, under circumstances dangerous to the officers did not rise to the level of an arrest); United States v. Gama-Bastidas, 142 F.3d at 1240 (“the use of firearms, handcuffs, and other forceful techniques are justified only by probable cause or when ‘the circumstances reasonably warrant such measures.’ ”); United States v. Melendez-Garcia, 28 F.3d at 1052-53 (holding that detention turned into an arrest when handcuffs and guns were used in the absence of evidence that the officers had reason to believe the individuals detained were particularly dangerous); United States v. Perea, 374 F.Supp.2d at 974-76 (holding sei zure of man thought to be armed-and-dangerous murder suspect, by use of handcuffs and drawn guns, did not rise to the level of an arrest). The Court also finds that this detention, occurring over a block from where the Defendants suspected that Lollis was hiding, could not reasonably be called a protective detention. For McDonnell to validly detain N. Smith in the manner that he did, he would need probable cause to believe that N. Smith was engaged in some criminal conduct. Because he had no such probable cause, this detention constituted" }, { "docid": "18861701", "title": "", "text": "at that time, they observed the defendant’s upper body lean forward in the driver’s seat. The officers could not see the defendant’s hands or arms, but believed his actions indicated he was reaching under the seat to place or retrieve something. Officer Sandoval warned Officer Jackson of the defendant’s movement in the car. Both the defendant and the passenger began to step out of the car, but the officers got out of the squad car and told them to remain seated. With their guns drawn, the officers approached the car and asked the defendant and his passenger to get out of the car and place their hands on the roof. Fearing the men were armed, the officers conducted a pat down search of them, which revealed no weapons. The defendant and his passenger were escorted to the rear of the car,, where at the officers’ request the defendant produced identification. As a protective measure, Officer Sandoval placed the passenger in handcuffs and then returned to the front of the vehicle to search for weapons. He leaned in the passenger side of the car and glanced under the passenger’s seat, finding nothing. When he looked under the driver’s seat, Officer Sandoval discovered a loaded revolver. After unloading the gun, he radioed for assistance, returned to the rear of the car, and arrested the defendant and his passenger. When another police unit arrived, the defendant and the passenger were placed in separate police cars. After being informed of his constitutional rights by Officer Jackson, the defendant indicated he understood those rights and was willing to answer questions. The defendant admitted to speeding and indicated that he was just “testing out” the car, which belonged to his girlfriend. The defendant admitted that he owned the gun and that it was loaded, but maintained the weapon was required for protection in the neighborhood. In response to further questions, the defendant stated that he had previously been arrested for robbery and other serious offenses, that he was a convicted felon, and that he knew he should not possess a gun. The defendant was subsequently indicted" }, { "docid": "23034963", "title": "", "text": "and the suspects in order to promote safety and that they restrained the suspects to “make it safe.” However, they gave no reasons why the circumstances of the stop reasonably necessitated the display of firearms and the use of handcuffs. We note that this stop was based on suspicion of trafficking drugs. Drugs and guns and violence often go together, and thus this might be a factor tending to support an officer’s claim of reasonableness. However, there was no evidence or testimony from the police that they had reason to believe these particular suspects had guns or were violent or that the circumstances of this particular encounter warranted the unusual intrusiveness of handcuffing the defendants during the Terry stop. In the absence of such evidence, the naked fact that drugs are suspected will not support a per se justification for use of guns and handcuffs in a Terry stop. Cf. United States v. Stewart, 867 F.2d 581, 585-86 (10th Cir.1989) (general observations about the conduct of drug dealers will not support exigent circumstances excusing police compliance with the knoek-and-an-nounce rule; police must articulate specific facts related to the premises to be searched or its occupants). The government does not explain or offer evidence to support an explanation why the officers in this ease needed to execute a “felony stop” when they outnumbered the defendants, executed the stop on an open highway during the day, had no tips or observations that the suspects were armed or violent, and the defendants had pulled their cars to a stop off the road and stepped out of their cars in full compliance with police orders. Based on this record, the government has not met its burden of showing that, under the totality of the circumstances, the intrusiveness of this seizure was reasonably necessary for officer safety. Because the police did not justify the stop, this case differs from cases like Perdue. Because the specific nature of this stop was not justified under the Terry doctrine, we must treat it as an arrest, requiring probable cause. In fact, both officers testified that they viewed the" } ]

[ { "docid": "23358106", "title": "", "text": "may not discriminate on the basis of disability in the sale of insurance contracts or in the terms or conditions of the insurance contracts they offer.”), such an interpretation is “manifestly contrary” to the plain meaning of Title III and, accordingly, is not binding on this court. Chevron U.S.A, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984); see Parker, 121 F.3d at 1012 n. 5. Furthermore, since we find the plain meaning of “public accommodation” and 42 U.S.C. § 12182(a) to be clear, wé have no need to analyze the ADA’s legislative history. We also note that, by aligning ourselves with the Sixth Circuit’s Parker decision re garding the definition of “public accommodation!;,]” we part company with the First Circuit in this regard. In Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir.1994), the First Circuit held that Title III is not limited to physical structures. The First Circuit pointed to the inclusion of “travel service” in the list of public accommodations and noted: Many travel services conduct business by telephone or correspondence without requiring their customers to enter an office in order to obtain their services. Likewise, one can easily imagine the existence of other service establishments conducting business by mail and phone without providing facilities for their customers to enter in order to utilize their services. It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result. Id. at 19 (citing 42 U.S.C. § 12181(7)(F)). However, as the Sixth Circuit pointed out in Parker, 121 F.3d at 1014, the First Circuit failed to read the examples of public accommodations that piqued the First Circuit’s interest in the context of the other examples of public accommodations. The litany of terms, including “auditorium,” “bakery,” “laundromat,” “museum,” “park,” “nursery,” “food bank,” and “gymnasium[ ]” refer to places with resources utilized" } ]

[ { "docid": "2216283", "title": "", "text": "In determining whether summary judgment is warranted, we review the facts in the light most favorable to the non-moving party, and draw all reasonable factual inferences in that party’s favor. Id. A. The ADA Claim Title III of the ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, leases to, or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Peoples claims that DFS discriminated against him by failing to consider his blindness when addressing his fraud claim. The Courts of Appeals are split on whether the term “public accommodation,” as used in the ADA, refers to an actual physical structure or whether it has some broader meaning. Compare Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir.2000) (holding that an insurance company administering an employer-provided disability plan is not a place of public accommodation), and Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir.1998) (“The plain meaning of Title III is that a public accommodation is a place .... ”), and Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir.1997) (holding that “a public accommodation is a physical place”) with Morgan v. Joint Admin. Bd., Bet. Plan of the Pittsburg Co., 268 F.3d 456, 459 (7th Cir.2001) (refusing to interpret “public accommodation” literally, so as to “denot[e] a physical site”), and Carparts Distribution Ctr., Inc. v. Auto. Wholesalers Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir.1994) (holding that public accommodations are not limited to physical structures). Our court is among those that have taken the position that the term is limited to physical accommodations. Ford, 145 F.3d at 612. Despite Peoples’s request that we “clarify or reconsider” our holding in Ford and extend our interpretation of public accommodations to include things other than physical places (Appellant’s Op. Br. at 27), we are bound by our precedent. See Pa. Ass’n of Edwards Heirs v. Bightenour, 235" }, { "docid": "1786902", "title": "", "text": "(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) an auditorium, convention center, lecture hall, or other place of public gathering; (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (G) a terminal, depot, or other station used for specified public transportation; (H) a museum, library, gallery, or other place of public display or collection; (I) a park, zoo, amusement park, or other place of recreation; (J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation. 42 U.S.C. § 12181(7). Although Title III does not identify commercial, passenger vessels as covered public accommodations, the Eleventh Circuit has held that “those parts of a cruise ship which fall within the statutory enumeration of public accommodations are themselves public accommodations for purposes of Title III.” Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1241 (11th Cir.2000) (per curiam); see also id. (“[A] public accommodation aboard a cruise ship seems no less a public accommodation just because it is located on a ship instead of upon dry land. In other words, a restaurant aboard a ship is still a restaurant.”). Thus, the areas of commercial, passenger vessels that serve the public must comply with Title Ill’s general rule prohibiting discrimination, on the basis of disability (i.e., a physical or mental impairment), in the provision of goods, services, facilities, privileges, advantages, or accommodations. See id. at 1241 n. 5 (“Only those portions of the cruise ship that come within the statutory definition of ‘public accommodation’ are subject to the public accommodation provisions of Title III. Other parts" }, { "docid": "12203981", "title": "", "text": "1989). . Boyd v. Driver, 579 F.3d 513, 515 (5th Cir. 2009). . See 42 U.S.C. § 12182(a). . Id. . Id. . See id. § 12181(7). . Id. § 12181(7)(A)-(L). .Id. § 12181(7)(E) (emphasis added). In his complaint and before the district court, Ma-gee also asserted that Coca-Cola's vending machines fall under the category of \"a restaurant, bar, or other establishment serving food or drink.” Id. § 12181(7)(B) (emphasis added). On appeal, however, Magee has abandoned this argument, relying exclusively on § 12181 (7)(E). . 28 C.F.R. § 36.104. . Id. . Compare 28 C.F.R. § 36.104 with 42 U.S.C. § 12181(7)(E). . Magee v. Coca-Cola Refreshments USA, Inc., 143 F.Supp.3d 464, 467 (E.D. La. 2015). . Id. . Id. . See Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (\"The appropriate starting point when interpreting any statute is its plain meaning.”). . See 42 U.S.C. § 12181(7)(A), (B), (E), (F), & (K) (emphasis added). . Id. § 12181(7)(E). . Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961). . Ejusdem generis, Black’s Law Dictionary (10th ed. 2014). . See 42 U.S.C. § 12181(7)(E). . Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997); see also Ford v. Schering-Plough Corp., 145 F.3d 601, 613-14 (3d Cir. 1998) (“[W]e do not find the term 'public accommodation' or the terms in 42 U.S.C. § 12181(7) to refer to non-physical access or even to be ambiguous as to their meaning.”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-15 (9th Cir. 2000). . Weyer, 198 F.3d at 1114. . In following the Third, Sixth, and Ninth Circuits, we acknowledge our departure from the precedents of the First, Second, and Seventh Circuits, which have interpreted the term “public accommodation” to extend beyond physical places. See Carports Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 18-20 (1st Cir. 1994); Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 31-33 (2d Cir. 1999); Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co." }, { "docid": "12203982", "title": "", "text": "1579, 6 L.Ed.2d 859 (1961). . Ejusdem generis, Black’s Law Dictionary (10th ed. 2014). . See 42 U.S.C. § 12181(7)(E). . Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997); see also Ford v. Schering-Plough Corp., 145 F.3d 601, 613-14 (3d Cir. 1998) (“[W]e do not find the term 'public accommodation' or the terms in 42 U.S.C. § 12181(7) to refer to non-physical access or even to be ambiguous as to their meaning.”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-15 (9th Cir. 2000). . Weyer, 198 F.3d at 1114. . In following the Third, Sixth, and Ninth Circuits, we acknowledge our departure from the precedents of the First, Second, and Seventh Circuits, which have interpreted the term “public accommodation” to extend beyond physical places. See Carports Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 18-20 (1st Cir. 1994); Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 31-33 (2d Cir. 1999); Morgan v. Joint Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed. of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001). As the Third and Sixth Circuits have explained, that interpretation ignores the doctrine of noscitur a sociis. See Ford, 145 F.3d at 614; Parker, 121 F.3d at 1014. . Establishment, Merriam-Webster's Collegiate Dictionary (10th ed. 1999). . Place, Merriam-Webster's Collegiate Dictionary (10th ed. 1999). . Establishment, Webster's Third New International Dictionary (1986). . Place, Webster’s Third New International Dictionary (1986). . Establishment, The American Heritage Dictionary of the English Language (1976). . Establishment, The New Shorter Oxford English Dictionary (1993). . Establishment, Webster’s Encyclopedic Unabridged Dictionary of the English Language (1989). . Establishment, Black’s Law Dictionary (10th ed. 2014). . Place of Business, Black’s Law Dictionary (10th ed. 2014). . A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 496, 65 S.Ct. 807, 89 L.Ed. 1095 (1945). . The Supreme Court instructs that the DOJ’s guidance in reference to the ADA is entitled to deference. See Bragdon v. Abbott, 524 U.S. 624, 646, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (\"As the" }, { "docid": "20911428", "title": "", "text": "hold only that Levorsen has access to Octap-harma as a public accommodation. Thus, we reject Octapharma’s suggestion that our holding is fundamentally irreconcilable with the FDA regulations governing PDCs. HOLMES, Circuit Judge, dissenting. I respectfully dissent. The sole question on appeal is whether a plasma-donation center constitutes a “service establishment” within the meaning of 42 U.S.C. § 12181(7)(F). In contrast to the majority, I do not believe that such centers fall within the ambit of the term “service establishment.” Therefore, I would affirm the district court’s judgment. I A ' In 42 U.S.C. § 12181(7)(F), Congress identified a category of “private entities [that] are considered public accommodations” — i.e., service establishments — under Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12213. Congress enumerated the category as follows: “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment.” 42 U.S.C. § 12181(7)(F) (emphasis added). We construe Title III with its broad remedial purpose in mind. See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 675, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) (discussing the “broad mandate,” “comprehensive character,” and “sweeping purpose” of the ADA in “eliminating] discrimination against disabled individuals! ] and ... integrating] them ‘into the economic and social mainstream of American life.’ ” (citations omitted)); id. at 676, 121 S.Ct. 1879 (stating that Title Ill’s legislative history indicates that the categories of “public accommodation[s]” “should be construed liberally” (citation omitted)); see also Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 983 (10th Cir. 2002) (“In our review of the antidiscrimination laws we must be mindful of their remedial purposes, and liberally interpret their provisions to that end.” (quoting Wheeler v. Hurdman, 825 F.2d 257, 262 (10th Cir. 1987))); Butler v. City of Prairie Vill, 172 F.3d 736, 744 (10th Cir. 1999) (noting that “the ADA’s remedial purposes are broad and far-reaching”). Nevertheless, I would conclude that a plasma-donation center is not a" }, { "docid": "20911441", "title": "", "text": "of a statute’s terms. Phillips, 543 F.3d at 1206. In short, I would conclude that the district court’s decision to apply, at least tacitly, the canons of ejusdem generis and noscitur a sociis was not erroneous. Moreover, this conclusion is bolstered by the recognition that several of our sister circuits have used noscitur a sociis in interpreting § 12181(7). See, e.g., Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997) (en banc). In my view, therefore, these canons are helpful to the inquiry called for here, and I resort to them. 3 Having reviewed the examples listed in § 12181(7)(F) with the benefit of the foregoing interpretive canons, I agree with the district court that service establishments offer services to the public in exchange for compensation. Every service establish ment listed in that subsection offers a service to the public in exchange for compensation: laundromats and dry cleaners offer services involving the cleaning of clothes in exchange for a fee, barbers and beauticians offer to cut and style hair in exchange for a fee, shoe-repair businesses offer to repair shoes in exchange for a fee, and so on. Therefore, I would conclude that service establishments offer services to the public in exchange for a fee (i.e., monetary compensation). The district court did not expressly opine on the kinds of “services” that the statute contemplates. Undertaking a de novo study of the examples listed in subsection (7)(F), however, offers some dis-cernable clues. Specifically, every service establishment listed in subsection (7)(F) provides the public a “service” in the form of (1) expertise (e.g., barbers, beauticians, shoe-repair businesses, dry cleaners, funeral parlors, lawyers, accountants, insurance offices, health care providers, and hospitals), or (2) specialized equipment (e.g., laundromats and gas stations). Moreover, the services that such establishments provide to the public (not surprisingly) are intended for the public’s use in achieving a desired end (e.g., a hair cut, clean clothes, legal advice). Therefore, viewing the" }, { "docid": "21972262", "title": "", "text": "denied equal access to Target stores, as well as to the numerous goods, services and benefits offered to the public through Target.com.” Complaint ¶24. Plaintiffs’ legal theory is that unequal access to Target.com denies the blind the full enjoyment of the goods and services offered at Target stores, which are places of public accommodation. Defendant contends that even if Target.com is the alleged service of Target stores, plaintiffs still do not state a claim because they fail to assert that they are denied physical access to Target stores. Although a plaintiff may allege an ADA violation based on unequal access to a “service” of a place of public accommodation, courts have held that a plaintiff must allege that there is a “nexus” between the challenged service and the place of public accommodation. Under Ninth Circuit law, a “place of public accommodation,” within the meaning of Title III, is a physical place. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.2000) (concluding that places of public accommodation are “actual, physical places.”) . The Ninth Circuit has declined to join those circuits which have suggested that a “place of public accommodation” may have a more expansive meaning. See Carparts Distribution Ctr., Inc. v. Automotive Wholesalers Assoc. of New England, Inc., 37 F.3d 12, 19-20 (1st Cir.1994) (holding that “public accommodations” encompasses more than actual physical structures and includes the defendant insurance company); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir.1999) (noting, in dicta, that a “place of public accommodation” encompasses facilities open to the public in both physical and electronic space, including websites). In Weyer, plaintiff sued an insurance company for offering a policy that allegedly discriminated against people with mental disabilities. The Ninth Circuit adopted the reasoning of the Third and Sixth Circuits, finding that there was “no nexus between the disparity in benefits and the services which ... [the insurance company] offers to the public from its insurance office.” Weyer, 198 F.3d at 1115. The court noted that although an insurance office is a place of public accommodation, an insurance" }, { "docid": "9644664", "title": "", "text": "Antioch, 179 F.3d 725, 730 (9th Cir.1999). Chabner alleges that the nonstandard premium that United charged him for his insurance policy violated the ADA. Recently, however, we held that although Title III of the ADA requires an insurance office to be physically accessible to the disabled, it does not address the terms of the policies the insurance companies sells. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir.2000). We therefore hold that United did not violate the ADA by offering Chabner a nonstandard policy. Title III of the ADA provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The ADA also includes a “safe harbor” provision, which says that “[the ADA] shall not be construed to prohibit or restrict ... an insurer ... from underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law....” 42 U.S.C. § 12201(c). Weyer, which was handed down after the district court’s order was issued, concerned the question of whether an insurance company that administers an employer-provided disability plan was a “place of public accommodation” under Title III of the Americans with Disabilities Act. We found that the term “place of public accommodation” required a connection between the good or service complained of and an actual physical place. As we explained: [c]ertainly, an insurance office is a place where the public generally has access. But this case is not about such matters as ramps and elevators so that disabled people can get to the office. The dispute in this case, over terms of a contract that the insurer markets through an employer, is not what Congress addressed in the public accommodations provisions. Weyer, 198 F.3d at 1114. In adopting this approach, we followed the Third and Sixth Circuits, each of which agreed that an insurance company that administered" }, { "docid": "14855315", "title": "", "text": "Court’s earlier jurisprudence, then Desert Palace may apply to retaliation cases. If that is so, then it may also apply to retaliation cases under section 1140. . Iwata has not argued that the Plan terms violate Title III of the ADA, which reads, in pertinent part: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). The First Circuit has acknowledged the possibility that the public accommodations provisions of Title III might apply to health benefit plans, at least in some circumstances. Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler’s Assoc. of New England, Inc., 37 F.3d 12, 19-20 (1st Cir.1994). That logic may extend to welfare benefit plans as well. Other circuits have criticized the First Circuit’s suggestion. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1113 & n. 48 (9th Cir.2000) (noting \"that insurance companies do not even meet the expánsive (and questionable) First Circuit approach”); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir.1998) (noting that the court ”part[s] company with the First Circuit” regarding the definition of public accommodation); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1013-14 (6th Cir.1997) (noting \"disagree[ment] with the First Circuit's decision in Carparts”). . The footnote in the last paragraph of this provision notes that the original statute makes \"subchapter'’ singular, even though it was likely meant to be plural. See 42 U.S.C. § 12201(c) n. 1. . See also Ford, 145 F.3d at 608 (“So long as every employee is offered the same plan regardless of that employee's contemporary of future disability status, then no discrimination has occurred even if the plan offers different coverage for various disabilities.”). . The rehearing is on hold indefinitely because one of the parties is in bankruptcy. See Johnson v. K Mart Corp., 281 F.3d 1368 (11th Cir.2002). . Some elements of the Grove City decision that" }, { "docid": "22746552", "title": "", "text": "all, as noted, the argument depends on an evaluation of facts that were not alleged in the complaint. To resolve the question whether Southwest.com had a sufficient “nexus” to physical locations to subject it to Title III of the ADA, we would have to evaluate extensive factual records and testimony about Southwest Airlines’ physiol locations and their connection to the web site. Again, we are unable to do so because these matters were never presented to the district court. And again, this question is complicated further because many, if not all, of Southwest Airlines’ physical facilities may be explicitly exempted from Title III, which does not cover the terminals or depots of aircraft. 42 U.S.C. § 12181(10). In short, this is a difficult question, and one about which there is considerable doubt. Furthermore, even the purely legal question of the application of Title III to Internet web sites is far from “beyond any doubt.” In addressing the question, we would be wading into the thicket of a circuit split on this issue. Compare Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19-20 (1st Cir.1994), and Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir.1999) (suggesting that web sites can be considered public accommodations), with Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-13 (6th Cir.1997), Ford v. Schering-Plough Corp., 145 F.3d 601, 612-14 (3d Cir.1998), and Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.2000) (finding otherwise). Plainly, this is not an easy question. As for the final exception to the general rule — that an issue may be presented for the first time on appeal if it “presents significant questions of general impact or of great public concern” — we do not believe that this case is appropriate for application. The question raised before the district court — whether a web site is a place of public accommodation covered by Title III — is a question of substantial public interest, because it concerns the application of one of the landmark civil rights statutes" }, { "docid": "5071337", "title": "", "text": "Ninth, and Eleventh Circuits hold that the statute is unambiguous: “places of public accommodation” are physical structures, and the only goods and services that a disabled person has a “full and equal” right to enjoy are those offered at a physical location. Discrimination only exists if the discriminatory conduct has a “nexus” to the goods and services of a physical location. They base their conclusion largely on the text of the statute, which lists physical locales as “public accommodations.” Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998) (“The plain meaning of Title III is that a public accommodation is a place.... This is in keeping with the host of examples of public accommodations provided by the ADA, all of which refer to places.”); Peoples v. Discover Financial Services, Inc., 387 Fed.Appx. 179, 183 (3d Cir. 2010) (“Our court is among those that have taken the position,that the term [public accommodation] is limited to physical accommodations.”); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997) (en banc) (“As is evident by § 12187(7), a public accommodation is a physical place and this Court has previously so held.”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (“Title III provides an extensive list of ‘public accommodations’ .in- § 12181(7) ... All the items on this list, however, have something in common. They are actual, physical places where goods or services are open to the public, and places where the public gets those goods or services .... [T]his context suggests that some connection between the good or service complained of and an actual physical place is required.”); Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1282 (11th Cir. 2002) (“Title III encompasses a claim involving telephonic procedures that, in this case, tend to screen out disabled persons from participation in a competition held in a tangible public accommodation.”). This narrow physical approach means, in practice, that the inaccessible website of a brick-and-mortar retail store could run afoul of the ADA if the website’s inaccessibility interferes with the “full and equal enjoyment”" }, { "docid": "20911436", "title": "", "text": "given precise content by the specific terms that precede it.”). 2 At issue in this case is subsection (7)(F); it includes in the definition of “public accommodations”: “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment.” 42 U.S.C. § 12181(7)(F) (emphasis added). The district court sought to derive a “common theme” from the enumerated examples, and concluded that they all involve “the provision of goods or services to the public, in exchange for money.” Aplt.’s App. at 37. In effect, the court applied the ejusdem generis and noscitur a sociis canons. The majority concludes that the district court erred in applying these canons because the ordinary meaning of the statutory language is clear. This conclusion, however, overlooks the key principle that such canons of statutory construction are aids in construing the language itself — not tools to be relied on only in the face of ambiguity. See McDonnell, — U.S. at-, 136 S.Ct. 2355 (applying the noscitur a sociis canon to an unambiguous statute in giving it a “more limited. reading”); Chickasaw Nation, 534 U.S. at 94, 122 S.Ct. 528 (stating that canons of construction are “designed to help judges determine the Legislature’s intent as embodied in particular statutory language” (emphasis added)); Brune, 767 F.3d at 1022-23 (stating that “simply resorting to a dictionary definition in this case is not especially helpful” because “[t]he multiple definitions of [the residual phrase at issue] preclude an obvious, unitary usage,” but “the wording of the statute invites the application of the canon of construction of ejusdem generis[ ] [because] ‘general words follow specific words in a statutory enumeration ...’” (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001))); CBS, Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225 (11th Cir. 2001) (“[T]he canons of construction focus on the text actually approved by Congress and made a part of our country’s laws. ... Canons of" }, { "docid": "21972263", "title": "", "text": ". The Ninth Circuit has declined to join those circuits which have suggested that a “place of public accommodation” may have a more expansive meaning. See Carparts Distribution Ctr., Inc. v. Automotive Wholesalers Assoc. of New England, Inc., 37 F.3d 12, 19-20 (1st Cir.1994) (holding that “public accommodations” encompasses more than actual physical structures and includes the defendant insurance company); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir.1999) (noting, in dicta, that a “place of public accommodation” encompasses facilities open to the public in both physical and electronic space, including websites). In Weyer, plaintiff sued an insurance company for offering a policy that allegedly discriminated against people with mental disabilities. The Ninth Circuit adopted the reasoning of the Third and Sixth Circuits, finding that there was “no nexus between the disparity in benefits and the services which ... [the insurance company] offers to the public from its insurance office.” Weyer, 198 F.3d at 1115. The court noted that although an insurance office is a place of public accommodation, an insurance company administering an employer-provided insurance policy is not a place of public accommodation. Id. Similarly, the Eleventh Circuit in Rendon v. Valleycrest Prod., Ltd. held that the telephone process for selecting contestants for “Who Wants to be a Millionaire” discriminated against people with hearing and other physical disabilities. 294 F.3d 1279, 1280-81 (11th Cir.2002). The court found that the studio where the show was filmed was a place of public accommodation and that competing on the show was a privilege provided by the place of public accommodation. Id. at 1283-84. Thus, the court held that by using a discriminatory process for screening potential contestants, defendant was denying disabled persons equal enjoyment of a privilege (competing on the show) of a place of public accommodation (the studio). Id. at 1284-85; see also Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir.1998) (holding that plaintiff failed to allege a nexus between the place of public accommodation and the insurance benefits offered by the employer); Stoutenborough v. National Football League, 59 F.3d 580, 583-84 (6th Cir.1995) (affirming" }, { "docid": "7996867", "title": "", "text": "that Bowers’ ADA claim fails for three reasons. First, it argues that it is not a place of public accommodation and that it does not own, lease, or operate a place of public accommodation. Second, the NCAA argues that Bowers has not alleged that he was denied access to a place of public accommodation. Finally, the NCAA argues that it does not discriminate against the learning disabled. See NCAA’s Brief at 7-15. These arguments in support of the motion to dismiss and, when matters outside the pleadings are considered, in support of the motion for summary judgment, are without merit. i. Place of Public Accommodation With respect to the first argument&emdash; that the NCAA itself is not a place of public accommodation—the Third Circuit has recently held, and quite rightly, that a public accommodation within the meaning of 42 U.S.C. § 12181(7) is a physical place. Schering-Plough Corp., 1998 WL 258386 at *12-13 (rejecting analysis of Carparts Distribution Ctr., Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir.1994), and endorsing approach of Parker, 121 F.3d 1006); see also Erwin v. Northwestern Mut. Life Ins. Co., 1998 WL 154627, *7-8 (S.D.Ind. Mar. 17, 1998); Leonard F., 967 F.Supp. at 804 (“[The Carparts ] opinion purports to find an ambiguity in the statute because one can avail oneself or herself [sic] of services ... by telephone without entering the physical premises of the travel agent, and that Congress could not have intended an absurd result_ This decision ... flies in the face of the plain meaning of Title III and is not supported by the legislative history.”). Thus, the NCAA as an unincorporated association and voluntary membership organization is not and cannot be a public aeeommo-dation within the meaning of section 12182(a). Schering-Plough, 1998 WL 258386 at *12-13. Nor, a fortiori, is the NCAA a place of public accommodation within the meaning of section 12182(a). See, e.g., Stoutenborough v. National Football League, 59 F.3d 580, 583 (6th Cir.1995) (football league, football clubs, and broadcasters were not subject to Title III in promulgation and enforcement of “blackout” rule" }, { "docid": "12203974", "title": "", "text": "twelve specific categories of places of public accommodation listed in the statute and the federal regulations,” Magee “is attempting to expand the term ‘place of public accommodation’ well beyond its statutory definition in order to sue a defendant amenable to nationwide relief.” Magee contends on appeal that Coca-Cola’s vending machines are “places of public accommodation” because they are “sales establishments” under 42 U.S.C. § 12181(7)(E), so we begin with the text of that statute. Neither it nor the regulations define the term “sales establishment.” We therefore turn to that term’s plain meaning. Title 42 U.S.C. § 12181(7) uses the term “establishment” six times: (A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (B) a restaurant, bár, or other establishment serving food or drink; | (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or law yer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment[.] Magee invokes only subsection (E): “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment[.]” Under the principle of noscitur a sociis, “a word is known by the company it keeps.” Similarly, the canon of ejusdem generis instructs that “when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.” Applying these principles, we are convinced that Coca-Cola’s vending machines are not “sales establishments” under 42 U.S.C. § 12181(7)(E). The relevant portion of that statute uses the term “sales establishment” following a list of retailers oceupy-ing physical" }, { "docid": "99489", "title": "", "text": "Wholesaler’s Assoc. of New England, Inc., 37 F.3d 12, 18-20 (1st Cir. 1994) (holding that a trade association which administers a health insurance program, without any connection to a physical facility, can be a “place of public accommodation”). On the other hand, the Third, Sixth and Ninth Circuits, in similar cases involving health insurance programs, followed the logic of Welsh and Clegg in holding that places of public accommodation under Title III of the ADA must be physical places. See Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006, 1014 (6th Cir.1997) (holding that “the clear connotation of the words in § 1218(7) is that a public accommodation is a physical place,” because “[ejvery term listed in § 12181(7) ... is a physical place open to public access”); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3rd Cir.1998) (holding that “the plain meaning of Title III is that a public accommodation is a place,” and that § 12181(7) does not “refer to non-physical access”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16 (9th Cir.2000) (following Parker and Ford). Thus, it appears that the weight of authority endorses the “actual physical structure” requirement in the ADA context as well. Most significantly, two more recent ADA cases involving fact situations much closer to those at bar reaffirm the principle that a “places of public accommodation,” even under the ADA’s broader definition, must be actual, physical facilities. In one case, the plaintiffs claimed that Southwest Airlines was in violation of the ADA because its “southwest.com” web site was incompatible with “screen reader” programs and thus inaccessible to blind persons. See Access Now, Inc. v. Southwest Airlines, Co., 227 F.Supp.2d 1312, 1316 (S.D.Fla.2002). Thus, the question presented was whether the airline’s web site, which serves as an online ticket counter, constitutes a “place of public accommodation” under the ADA. The Access Now court held that places of public accommodation under the ADA are limited to “physical concrete structures,” and that the web site was not an actual physical structure. Id. at 1319. Rejecting the invitation to endorse the Carparts approach and" }, { "docid": "5071345", "title": "", "text": "or moving companies — would be exempt from the ADA. The First Circuit held in Carparts that such an interpretation is absurd. Under the Car-parts decision, the-Watch Instantly web site is a place of public accommodation and Defendant may not discriminate in the provision of the services of that public accommodation — streaming video— even if those services are accessed exclusively in the home. Nat’lAss’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196, 201-02 (D. Mass. 2012) (citations omitted) (emphasis added). 3) Second Circuit Precedent The leading ease in the Court of Appeals for the Second Circuit on this issue, Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999), opinion amended on denial of reh’g, 204 F.3d 392 (2d Cir. 2000). It indicates that the court shares the view of the First and Seventh Circuits. In Pallozzi, a* couple alleged that their application for a joint life insurance policy had been denied by Allstate because of their mental disabilities. The question on appeal was whether Title III of the ADA “regulate[s] insurance underwriting practices.” Pallozzi, 198 F.3d at 31. The court started with the text of Title III, noting that the statute named an “insurance office” as a “public accommodation”- and that “[sjection 302(a) bars a ‘place of public accommodation’ from ‘dis-criminat[ing]' against [an individual] on the basis of disability - in the full and equal enjoyment of [its] goods [and] services.’ ” Id. (quoting. 42 U.S.C. §§ 12181(7)(F), 12182(a)) (alterations and emphases in original). Rather than taking a literal approach to the term “insurance office,” it sensibly held that the most conspicuous “goods” and “services” provided by an ’“insurance office” are insurance policies. Thus, the prohibition imposed on a place of public accommodation from discriminating against a disabled customer in the enjoyment of its goods and services appears to prohibit an insurance office from discriminatorily refusing to offer its policies to disabled persons.... Id. (citing Doe v. Mutual Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999)). Allstate argued that the ADA was only concerned with ' physical access because Congress defined “the term" }, { "docid": "99488", "title": "", "text": "actual physical facilities under Title II, plaintiff turns to the case law interpreting the analogous “place of public accommodation” provision under Title III of the Americans With Disability Act (ADA). See 42 U.S.C. § 12182 (prohibiting discrimination in any place of public accommodation on the basis of disability); § 12181(7) (defining “place of public accommodation”). While the case law concerning places of public accommodation under the ADA is more abundant than that under Title II, it is not entirely uniform. Yet, a detour into the parallel ADA cases is instructive and ultimately supports the conclusion that “places of public accommodation” must consist of, or have a clear connection to, actual physical facilities or structures. The circuits are split regarding the essential question whether a place of public accommodation under the ADA must be an actual concrete physical structure. On the one hand, as plaintiff notes, the First Circuit has held that “places of public accommodation” under Title III of the ADA are not limited to actual physical facilities. See Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Assoc. of New England, Inc., 37 F.3d 12, 18-20 (1st Cir. 1994) (holding that a trade association which administers a health insurance program, without any connection to a physical facility, can be a “place of public accommodation”). On the other hand, the Third, Sixth and Ninth Circuits, in similar cases involving health insurance programs, followed the logic of Welsh and Clegg in holding that places of public accommodation under Title III of the ADA must be physical places. See Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006, 1014 (6th Cir.1997) (holding that “the clear connotation of the words in § 1218(7) is that a public accommodation is a physical place,” because “[ejvery term listed in § 12181(7) ... is a physical place open to public access”); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3rd Cir.1998) (holding that “the plain meaning of Title III is that a public accommodation is a place,” and that § 12181(7) does not “refer to non-physical access”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16" }, { "docid": "20911412", "title": "", "text": "accommodations”: “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment.” Section 12181(7)(F)’s enumerated examples aren’t exhaustive, see 28 C.F.R. pt. 36, app. C, at 893; rather, they serve as mere illustrations, see U.S. Dep’t of Justice, ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities § III-1.2000, www.ada.gov/taman3.html (last visited June 29, 2016). Moreover, courts must construe § 12181(7)(F) liberally to afford individuals with disabilities access to the same establishments available to those without disabilities. PGA Tour, 532 U.S. at 676-77, 121 S.Ct. 1879; see also Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 983 (10th Cir. 2002) (“In our review of the antidiscrimination laws we must be mindful of their remedial purposes, and liberally interpret their provisions to that end.” (quoting Wheeler v. Hurdman, 825 F.2d 257, 262 (10th Cir. 1987))). Citing these dictates, Levorsen argues that the district court erred in failing to liberally construe the term “service establishment” to encompass PDCs. According to Levorsen, the district court unneeessari ly employed canons of statutory interpretation and impermissibly read into § 12181 (7)(F) language that doesn’t appear there. As a result, Levorsen asserts, the district court arrived at an unacceptably narrow definition of “service establishment.” Instead, Levorsen argues, the district court should have given the term “service establishment” its plain meaning and defined it as an establishment that provides a service. And because PDCs unquestionably satisfy this definition, he concludes, they constitute public accommodations for purposes of Title III. Exercising de novo review, see Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009), we agree. We begin, as we must, with the plain language of § 12181(7)(F). See St. Charles Inv. Co. v. Comm’r, 232 F.3d 773, 776 (10th Cir. 2000) (“As in all cases requiring statutory construction, ‘we begin with the plain language of the law.’ ” (quoting United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir. 1991))). Under § 12181(7)(F), a" }, { "docid": "12203975", "title": "", "text": "or rental establishment; (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or law yer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment; (K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment[.] Magee invokes only subsection (E): “a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment[.]” Under the principle of noscitur a sociis, “a word is known by the company it keeps.” Similarly, the canon of ejusdem generis instructs that “when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.” Applying these principles, we are convinced that Coca-Cola’s vending machines are not “sales establishments” under 42 U.S.C. § 12181(7)(E). The relevant portion of that statute uses the term “sales establishment” following a list of retailers oceupy-ing physical stores. Other courts, including the Third, Sixth, and Ninth Circuits, have recognized that “[e]very term listed in § 12181(7) ... is a physical place open to public access.” “They are actual, physical places where goods or services are open to the public, and places where the public gets those goods or services.” Although the term “establishment” could possibly be read expansively to include a vending machine, a vending machine is not akin to any of the listed examples. Indeed, rather than falling within any of those broad categories of entities, vending machines are essentially always found inside those entities along with the other goods and services that they provide. The common meaning of the term “establishment” also supports Coca-Cola’s view that a “sales establishment” includes not only a business but also the physical space that it occupies. Merriamr-Webster’s Collegiate Dictionary defines “establishment” as “a place of business or residence with its furnishings and staff.” It relevantly defines “place” as “a building or locality used for a special purpose.” Webster’s Third New International Dictionary defines “establishment”" } ]

[ { "docid": "23172901", "title": "", "text": "that, except for Maywalt’s response that she thought she should be paid $10,000 instead of $5,000 as a class representative, he had received no indication at any time prior to his receipt of appellants’ June 2 letter, purporting to discharge class counsel, that any class representative objected to the substance of the proposed settlement. Maywalt replied with an affidavit stating, inter alia, that the class representatives were concerned that the amounts to be paid to individual investors were small and that the attorneys’ fees would be large. Maywalt stated that when she told LaBazzo she would prefer to receive the higher compensation for having served as a class representative, she was only joking. In a memorandum opinion reported at 155 F.R.D. 494 (1994), the district court denied appellants’ application to replace class counsel. Characterizing the duties of class representatives following class certification as “amorphous,” 155 F.R.D. at 496 n. 5, the court stated that the role of class counsel is generally greater than that of the class representatives in protecting the interests of absent class members, and that class counsel have a duty to protect the interests of the majority of the class even if the named plaintiffs hold a different view: Absent a finding of conflict of interest, ... no additional legal obligation — including a fiduciary obligation — appears to have been imposed upon class representatives under Rule 28(a)(4) by the Courts. By way of contrast, the legal obligations of Class Counsel, once certified as such, appear to extend much further than those imposed upon Class Representatives. Class counsel’s duty to the class as a whole frequently diverges from the opinion of either the named plaintiff or other objectors. ... [T]he compelling obligation of class counsel in class action litigation is to the group which makes up the class.... To that end, Class Counsel must act in a way which best represents the interests of the entire class and is not dependent on the special desires of the named plaintiffs. 155 F.R.D. at 496 (internal quotation marks omitted). With regard to the present case, the court noted that" } ]

[ { "docid": "6581102", "title": "", "text": "representation of the named plaintiffs. The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. Id. at 1211. Similarly, in Kincade v. General Tire and Rubber Co., 635 F.2d 501, 508 (5th Cir.1981), the court rejected the contention that the settlement could not be applied to named class representatives who did not authorize their attorneys to approve the settlement: Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney ... to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the representatives, and because “[t]he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole....” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir.1978). See also, e.g., Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); Flinn v. FMC Corp., 528 F.2d 1169, 1174 n. 19 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976) (“Appellants do not argue, nor may they under the authorities, that the assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable”); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974); Purcell v. Keane, 54 F.R.D. 455 (E.D.Pa.1972). As the Court of Appeals for the Fifth Circuit has pointed out: Certainly it is inappropriate to import the traditional understanding of the attorney-client relationship into the class action context" }, { "docid": "18443593", "title": "", "text": "— appears to have been imposed upon class representatives under Rule 23(a)(4) by the Courts. By way of contrast, the legal obligations of Class Counsel, once certified as such, appear to extend much further than those imposed upon Class Representatives. “Class counsel’s duty to the class as a whole frequently diverges from the opinion of either the named plaintiff or other objectors.” Walsh v. Great Atl. & Pac. Tea Co., 726 F.2d 956, 964 (3d Cir.1983); see also Kincade v. General Tire & Rubber Co., 635 F.2d 501, 508 (5th Cir.1981) (holding “ ‘client’ in a class action consists of numerous unnamed class members as well as the class representatives” can force class counsel to act in what she or he perceives to be in the best interests of the class as a whole). As noted in Parker v. Anderson, the duty owed to class clients differs significantly from the duty owed in an individual representation case. Parker v. Anderson, 667 F.2d 1204, 1211-12 (5th Cir.), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982). Further “[t]he compelling obligation of class counsel in class action litigation is to the group which makes up the class.” Id. at 1211. To that end, Class Counsel must act in a way which best represents the interests of “the entire class and is not dependent on the special desires of the named plaintiffs.” Id. In this case, no allegation of impropriety on behalf of Class Counsel has been made by the Moving Representative Plaintiffs. Further, no evidence has been proffered indicating that Class Counsel has in someway undermined the rights of the larger class and such concerns will be properly heard by this court at the duly noticed time of the Settlement Hearing. In fact, the heart of this application stems from the perceived inadequacy of communication between Class Counsel and the Moving Representative Plaintiffs, an event which is perhaps unbecoming, but based on the submissions here, does not constitute a level of impropriety necessitating the drastic remedy of a Court ordered discharge of Class Counsel. In the absence of concretely" }, { "docid": "8467258", "title": "", "text": "of enforcing the Proposed Settlement by further court action if necessary. 5. Various Issues were not Addressed Some class member object to the Proposed Settlement because it does not address certain issues such as the rehearing process, various hearing procedures, and appeals of special designations. These issues are not within the Complaint’s scope. Nothing in the Proposed Settlement, however, prejudices any class member from pursuing other legal claims on these issues. Nothing in any of the objections provides a reason for disapproving the Proposed Settlement. The Court finds the Proposed Settlement to be fair, adequate, reasonable, and in the class’s interest. Therefore, the Court approves the Proposed Settlement. C. Motion for Permission to Withdraw as Counsel for Richard Heit Plaintiffs counsel seeks to withdraw from representing Richard Heit because he filed objections to the Proposed Settlement after orally approving the Proposed Settlement. Plaintiffs counsel relies on the Model Code of Professional Responsibility and the Manual for Complex Litigation (Third) § 30.43 (1995) to support her argument that she should withdraw as Richard Heit’s counsel because of her independent duty to the class. Plaintiffs counsel believes that the Proposed Settlement agreement is in the class’s interest, and she cannot advocate on behalf of Plaintiffs objections. The Sixth Circuit has not spoken directly on this issue, but has stated that accepting a settlement over the objections of the named representatives is not necessarily an abuse of discretion. See Laskey v. International Union, United Auto., Aerospace and Agr. Implement Workers of America (UAW), 638 F.2d 954, 957 (1981). Other Circuits, however, have spoken on this issue. In Kincade v. General Tire and Rubber Co., 635 F.2d 501 (5th Cir.1981), the named class members appealed from an entry of a settlement agreement negotiated by their attorney, arguing that the attorney acted without their authorization. The Fifth Circuit held that it may be impossible for a class attorney to “do more than act in what he believes to be the best interests of the class as a whole[.]” Id. at 508. The Fifth Circuit has also stated that the duty owed by class counsel is" }, { "docid": "22202821", "title": "", "text": "will always be determinative or that the number of objectors to the settlement is not a significant consideration. We have already discussed the potential conflict of interest between an attorney and a class. See subsection 11(B), supra. As Judge Friendly aptly noted in Saylor v. Lindsley, 456 F.2d 896, 900-01 (2nd Cir. 1972), in a substantial number of class action cases the lawyer may be more prone to settle than the class. While the natural bias toward relatively small settlements and large fee awards in class actions may be controlled to a certain extent by the procedural requirements for district court approval of the settlement proposal, as a practical matter the lawyer’s discretion remains great. See K. Davis, Class Action: Efficiency, Compensation, Deterrence, and Conflict of Interest, 4 J. of Legal Studies 47, 57-58 (1975). Consequently, in reviewing a proposed settlement the district court should always consider the possibility that an agreement reached by the class attorney is not in the best interests of the class. This is particularly true where, as here, the class attorney settles the case without the participation or consent of the active class members. We recognize that discretion on the part of the class attorney often is an unavoidable fact of class action life. We noted in our examination of the appealability question that the traditional notion of the “client” deciding important litigation questions is often problematic in the class action context because of the difficulty in identifying the client. See subsection 11(B), supra. The class itself often speaks in several voices. Where there is disagreement among the class members concerning an appropriate course of action, it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole. If the attorney’s decision in the face of such disagreement affects each class member more or less equally, and no allegation is made that the rights of a definable minority group within the class were sacrificed for the benefit of the majority, the attorney’s views must be accorded great weight, and" }, { "docid": "22461191", "title": "", "text": "with no interrogatory addressed to individual claims,” we limit our inquiry to the record of the fairness hearing. Proponents and opponents of the settlement presented evidence at the fairness hearing. In an attempt to establish their claims, several objecting plaintiffs testified that they were potentially the victims of unlawful discrimination. By contrast, none of the named plaintiffs testified or offered evidence as to the merits of their individual claims. Rather, the evidence of the individual claims presented by the proponents consisted solely of the testimony of counsel for the class. In counsel’s opinion, the proposed division of the back pay fund was fair because the named plaintiffs had meritorious individual claims. The settlement proponents conceded at oral argument before this court that “there is no doubt about the fact that the allocation of the higher amounts to the eight named plaintiffs was based on the judgment of the plaintiffs’ attorney that they had individual claims worth more than the amounts allocated to them.” Courts often accord great weight to the opinions of counsel for the class in approving class action settlements. See Pettway IV, 576 F.2d at 1215 (“trial court is entitled to take account of the judgment of experienced counsel for the parties”); Cotton v. Hinton, 559 F.2d at 1330 (“the trial court is entitled to rely upon the judgment of experienced counsel for the parties”). The degree of deference given counsel’s opinion depends, however, upon the posture of the case and upon the amount of dissent within the “client” class: We recognize that discretion on the part of the class attorney often is an unavoidable fact of class action life.... [T]he traditional notion of the “client” deciding important litigation questions is often problematic in the class action context because of the difficulty in identifying the client. The class itself often speaks in several voices. Where there is disagreement among the class members concerning an appropriate course of action, it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole. If the" }, { "docid": "12294264", "title": "", "text": "object to the agreement). 22.Moreover, numerous courts have approved class action settlements notwithstanding opposition by named class representatives. For example, in affirming the approval of a class settlement opposed by all but one of eleven named plaintiffs in Parker v. Anderson, 667 F.2d 1204, 1211 (5th Cir.1982), reh’g denied, 671 F.2d 1378 (5th Cir.1982), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982), the Fifth Circuit observed: The courts have recognized that the duty owed by Class Counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to ap proval of a settlement which the trial court finds to be fair and reasonable. 23. The Fourth Circuit, in affirming approval of a settlement to which three named plaintiffs objected in Flinn v. FMC Corp., 528 F.2d 1169 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976), similarly noted: Appellants do not argue, nor may they under the authorities, that assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable. Id. at 1174 n. 19. 24. Approval of a class settlement was also affirmed, over the opposition of five of six named plaintiffs, in Kincade v. General Tire and Rubber Co., 635 F.2d 501 (5th Cir.1981): Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney ... to settle the case or otherwise consent to the settlement is easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because “(t)he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole.... ” Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual" }, { "docid": "6581101", "title": "", "text": "F.2d 956, 964 (3rd Cir.1983). See also Parker v. Anderson, 667 F.2d 1204, 1210-11 (5th Cir.), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982) (consent decree in class action upheld despite objections of a named party and class representative). Parker v. Anderson is a leading case on this issue. In Parker, the court of appeals affirmed the approval of a class action settlement “granted over the objection of all but one of the eleven named plaintiffs as well as over the objections of a number of class plaintiffs.” Id. at 1207. Rejecting the contention that class counsel did not fairly and adequately represent the class during negotiations, the court wrote: The duty owed to the client sharply distinguishes litigation on behalf of one or more individuals and litigation on behalf of a class. Objectors emphasize the duty of counsel in non-class litigation. The prevailing principles in that situation cannot be imported wholesale into a class action setting. The fairness and adequacy of counsel’s performance cannot be gauged in terms of the representation of the named plaintiffs. The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. Id. at 1211. Similarly, in Kincade v. General Tire and Rubber Co., 635 F.2d 501, 508 (5th Cir.1981), the court rejected the contention that the settlement could not be applied to named class representatives who did not authorize their attorneys to approve the settlement: Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney ... to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the representatives, and because “[t]he class itself often speaks in several voices ..., it may be impossible for the class attorney" }, { "docid": "3135231", "title": "", "text": "opting out to pursue their individual claims separately. Accordingly, unless the Constitution dictates otherwise, the rule denying the right to opt out to class members in a Rule 23(b)(2) case that goes to trial is also applicable when the case is settled. The appellants’ argument that they have a constitutional right to have a trial of their individual claims is easily disposed of. The due process clause of the Constitution is satisfied when a Rule 23(b)(2) class action is settled without providing objectors a means of opting out because the objectors are (1) adequately represented by the named plaintiffs, (2) represented by an attorney who is qualified, (3) provided with notice of the proposed settlement, (4) given an opportunity to object to the settlement, and (5) assured that the settlement will not take effect unless the trial judge-after analyzing the facts and law of the case and considering all objections to the proposed settlement-determines it to be fair, adequate, and reasonable. Robertson v. National Basketball Association, 556 F.2d 682, 685-86 (2d Cir. 1977). Authority of the Class Attorney to Settle Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney, Walker, to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because “[t]he class itself often speaks in several voices .. ., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole .... ” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978). Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable. Nevertheless, in Pettway our court found the “unanimous disapproval of the back pay settlement by the active named plaintiffs” a “significant factor” in its decision" }, { "docid": "12294265", "title": "", "text": "the authorities, that assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable. Id. at 1174 n. 19. 24. Approval of a class settlement was also affirmed, over the opposition of five of six named plaintiffs, in Kincade v. General Tire and Rubber Co., 635 F.2d 501 (5th Cir.1981): Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney ... to settle the case or otherwise consent to the settlement is easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because “(t)he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole.... ” Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable. Id. at 508 (internal citation omitted). 25. In Maywalt v. Parker & Parsley Petroleum Co., 864 F.Supp. 1422 (S.D.N.Y.1994), aff'd, 67 F.3d 1072 (2d Cir.1995), the Court approved a class settlement despite objections by four of five class representatives and approximately 2,700 other class members (at least 3% of the class) and stated: To empower the Class Representatives with what would amount to an automatic veto over the Proposed Settlement does not appear to serve the best interests of Rule 23 and would merely encourage strategic behavior “designed to maximize the value of the veto rather than the settlement value of their claims.” Id. at 1430 (quoting In re Ivan F. Boesky Sec. Litig., 948 F.2d 1358, 1366 (2d Cir.1991)). Recently, in In re Airline Ticket Comm’n Antitrust Litig., 953 F.Supp. 280, 282 n. 3 (D.Minn.1997), the Court approved the settlement despite the fact that one of the objectors was also a named class representative. The Court noted that it “consider[ed] [the representative’s] objection," }, { "docid": "693184", "title": "", "text": "that “[t]he settlement agreement was never approved by two of the class representatives, the other class representative has rescinded her approval of the settlement, and Class Counsel did not disclose these facts to the Court.” Objs. to Prop. Settlement at 10. The reaction of class members to the terms of a proposed settlement is an important factor in discerning the fairness of a settlement. Am.Jur.2d. Fed. Courts § 2134. However, because class counsel’s obligations run to the class as a whole, the class representatives’ assent is neither a sufficient nor a necessary condition to judicial approval of a class settlement. Kincade v. General Tire and Rubber Co., 635 F.2d 501, 508 (5th Cir.1981). That circumstance derives from the unique relationship of class counsel to the “plaintiffs” in the case. As the Kincade court explained: Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because the class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole.... Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable. Ibid, (internal quotes, alterations, and citation omitted). The Court’s focus must at all time remain on the fairness, reasonableness, and adequacy of the settlement, taking into account the views of all the class members, including the representatives and class counsel. Other factors include: (1) the strength of the plaintiffs’ case balanced against the settlement offer; (2) the defendant’s ability to pay; (3) the burdens of further litigation; (4) the amount of opposition to the settlement; (5) the presence of collusion; (6) the opinion of competent counsel; and (7) the stage of the proceedings and the amount of discovery that has been completed. EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir.1985). The objection to the settlement of" }, { "docid": "3135232", "title": "", "text": "the Class Attorney to Settle Appellants’ argument that the settlement cannot be applied to them because they did not authorize their attorney, Walker, to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because “[t]he class itself often speaks in several voices .. ., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole .... ” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978). Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable. Nevertheless, in Pettway our court found the “unanimous disapproval of the back pay settlement by the active named plaintiffs” a “significant factor” in its decision to reverse the district court’s approval of the settlement. 576 F.2d at 1216. However, the weight afforded the objections of the named plaintiffs in Pettway was based in part on the fact that there was “no showing of any conflict of interest, either actual or potential, between the representatives and the class ... . ” Id. Here the claim of the named plaintiffs to the entire settlement fund clearly distinguishes this case from Pettway and fatally undermines the argument that the objections of the named plaintiffs should have precluded the trial court from approving the settlement. This case is a prime example of one in which “the assent of named plaintiffs is not a prerequisite to the approval of a settlement.” Id. Conclusion Because the appellants had no right to opt out of the settlement of this class action, and because their assent was not a prerequisite to the trial court’s approval of the settlement, we hold that the appellants are not entitled to have the settlement set aside as to them. Accordingly, the district" }, { "docid": "22202822", "title": "", "text": "attorney settles the case without the participation or consent of the active class members. We recognize that discretion on the part of the class attorney often is an unavoidable fact of class action life. We noted in our examination of the appealability question that the traditional notion of the “client” deciding important litigation questions is often problematic in the class action context because of the difficulty in identifying the client. See subsection 11(B), supra. The class itself often speaks in several voices. Where there is disagreement among the class members concerning an appropriate course of action, it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole. If the attorney’s decision in the face of such disagreement affects each class member more or less equally, and no allegation is made that the rights of a definable minority group within the class were sacrificed for the benefit of the majority, the attorney’s views must be accorded great weight, and the trial judge’s decision to ratify the attorney’s action will seldom be overturned. At least in the context of a proposed back pay settlement, however, at some point objections from the class may become so numerous that in a very real sense it can be said that “the class” has not agreed to the proposal, that counsel’s perceptions of the best interests of the class are faulty, and that approval of the settlement by the district court constitutes an abuse of discretion. No simple percentages are determinative, of course, and each case must turn on its own facts. While recognizing the difficult task facing the district court in the absence of crisp guidelines and well-articulated standards for review of a settlement in the face of significant dissent from the class, we are firmly convinced that under the peculiar circumstances of this case, approval of the settlement in the face of such widespread dissent evidenced below constituted an abuse of discretion. The district court should not have placed its imprimatur upon this agreement. One significant factor" }, { "docid": "23438657", "title": "", "text": "on our jurisdiction. . Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). . The objectors concede that there is no direct evidence of a price-fixing conspiracy, and that, therefore, they must present evidence both of conscious parallelism and of \"plus factors” to make out a price-fixing case. They present only \"three evidentiary artifacts” to meet the plus-factor requirement; all three are weak at best. . Currently, the ABA’s Model Rules of Professional Conduct provide that \"[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.” Model Rules of Professional Conduct Rule 1.9(a) (1983); see also. id. cmt. (\"The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.”). . We also note that the objectors’ brief discusses not the ethical problems involved in the events that transpired, but the alleged shortcomings of Class Counsel while they represented the objectors. See Appellants' Br. at 38-41. Their claims sound less like an ethical breach requiring disqualification than like a hint of possible malpractice. See also id. at 42-45 (blaming Class Counsel for objectors' failure to raise their damages theory until late in the litigation and labeling this \"an actionable breach of the professional standard of care under extant Pennsylvania law”). . See also Laskey v. International Union, UAW, 638 F.2d 954, 957 (6th Cir.1981) (\"That the class counsel proposed a settlement which the named representatives opposed does not prove that the interests of the class were not protected.”); Kincade v. General Tire & Rubber Co., 635 F.2d 501, 508 (5th Cir.Jan.1981) (\"Because the 'client' in a class action consists of numerous unnamed class members as well as the class representatives, and because '[t]he class itself often speaks in several voices ..., it may be impossible for" }, { "docid": "8467259", "title": "", "text": "of her independent duty to the class. Plaintiffs counsel believes that the Proposed Settlement agreement is in the class’s interest, and she cannot advocate on behalf of Plaintiffs objections. The Sixth Circuit has not spoken directly on this issue, but has stated that accepting a settlement over the objections of the named representatives is not necessarily an abuse of discretion. See Laskey v. International Union, United Auto., Aerospace and Agr. Implement Workers of America (UAW), 638 F.2d 954, 957 (1981). Other Circuits, however, have spoken on this issue. In Kincade v. General Tire and Rubber Co., 635 F.2d 501 (5th Cir.1981), the named class members appealed from an entry of a settlement agreement negotiated by their attorney, arguing that the attorney acted without their authorization. The Fifth Circuit held that it may be impossible for a class attorney to “do more than act in what he believes to be the best interests of the class as a whole[.]” Id. at 508. The Fifth Circuit has also stated that the duty owed by class counsel is to the “entire class and is not dependent on the special desires of named plaintiffs.” Parker v. Anderson, 667 F.2d 1204, 1211 (5th Cir.1982)(affirming approval of settlement even though ten of eleven class representatives rejected it). The Parker court reasoned that a named plaintiff should not “be permitted to hold the absentee class hostage by refusing to assent to an otherwise fair and adequate settlement in order to secure [his] individual demands.” Id. The Fourth Circuit recognizes that an original plaintiff should be given an opportunity to retain new counsel to represent him or her in objecting to the settlement. See Flinn v. FMC Corp., 528 F.2d 1169, 1174 (4th Cir.1975). The Second Circuit has held similarly, stating that if the named plaintiff objects to settlement, class counsel must so inform the court so that the named plaintiff can pursue his or her objections with a new lawyer. See Saylor v. Lindsley, 456 F.2d 896, 900 (2nd Cir.1972). Recognizing Plaintiff counsel’s duty to the class, it appears she cannot represent Richard Heit because he objects" }, { "docid": "22461192", "title": "", "text": "class in approving class action settlements. See Pettway IV, 576 F.2d at 1215 (“trial court is entitled to take account of the judgment of experienced counsel for the parties”); Cotton v. Hinton, 559 F.2d at 1330 (“the trial court is entitled to rely upon the judgment of experienced counsel for the parties”). The degree of deference given counsel’s opinion depends, however, upon the posture of the case and upon the amount of dissent within the “client” class: We recognize that discretion on the part of the class attorney often is an unavoidable fact of class action life.... [T]he traditional notion of the “client” deciding important litigation questions is often problematic in the class action context because of the difficulty in identifying the client. The class itself often speaks in several voices. Where there is disagreement among the class members concerning an appropriate course of action, it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole. If the attorney’s decision in the face of such disagreement affects each class member more or less equally, and no allegation is made that the rights of a definable minority group within the class were sacrificed for the benefit of the majority, the attorney’s views must be accorded great weight, and the trial judge’s decision to ratify the attorney’s action will seldom be overturned. At least in the context of a proposed back pay settlement, however, at some point objections from the class may become so numerous that in a very real sense it can be said that “the class” has not agreed to the proposal, that counsel’s perceptions of the best interests of the class are faulty, and that approval of the settlement by the district court constitutes an abuse of discretion. No simple percentages are determinative, of course, and each case must turn on its own facts. While recognizing the difficult task facing the district court in the absence of crisp guidelines and well-articulated standards for review of a settlement in the face of significant" }, { "docid": "23438658", "title": "", "text": "We also note that the objectors’ brief discusses not the ethical problems involved in the events that transpired, but the alleged shortcomings of Class Counsel while they represented the objectors. See Appellants' Br. at 38-41. Their claims sound less like an ethical breach requiring disqualification than like a hint of possible malpractice. See also id. at 42-45 (blaming Class Counsel for objectors' failure to raise their damages theory until late in the litigation and labeling this \"an actionable breach of the professional standard of care under extant Pennsylvania law”). . See also Laskey v. International Union, UAW, 638 F.2d 954, 957 (6th Cir.1981) (\"That the class counsel proposed a settlement which the named representatives opposed does not prove that the interests of the class were not protected.”); Kincade v. General Tire & Rubber Co., 635 F.2d 501, 508 (5th Cir.Jan.1981) (\"Because the 'client' in a class action consists of numerous unnamed class members as well as the class representatives, and because '[t]he class itself often speaks in several voices ..., it may be impossible for tire class attorney to do more than act in what he believes to be the best interests of the class as a whole .... ’ ” (citation omitted) (alteration and omissions in original)); Maywalt v. Parker & Parsley Petroleum Co., 155 F.R.D. 494, 497 (S.D.N.Y.1994) (\"In the absence of concretely alleged acts of impropriety by the duly certified Class Counsel, or a showing abridgment of a significant minority of the Class’ rights, this Court will not grant the hasty application of the Moving Representative Plaintiffs to replace Class Counsel on the eve of the Settlement Hearing.”), aff'd, 67 F.3d 1072, 1079 (2d Cir.1995)." }, { "docid": "23180471", "title": "", "text": "presented by this appeal is whether class counsel provided fair and adequate legal representation to the class as a whole. Necessarily, much of what counsel does for the class is by and through the class representatives, but that is neither the ultimate nor the key determi nant. The compelling obligation of class counsel in class action litigation is to the group which makes up the class. Counsel must be aware of and motivated by that which is in the maximum best interests of the class considered as a unit. The duty owed to the client sharply distinguishes litigation on behalf of one or more individuals and litigation on behalf of a class. Objectors emphasize the duty of counsel in non-class litigation. The prevailing principles in that situation cannot be imported wholesale into a class action setting. The fairness and adequacy of counsel’s performance cannot be gauged in terms of the representation of the named plaintiffs. In addressing this point in our recent decision of Kincade v. General Tire & Rubber Co., 635 F.2d 501, 508 (5th Cir. 1981), we stated: Appellants’ argment that the settlement cannot be applied to them because they did not authorize their attorney . .. to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the representatives, and because “[t]he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole .. .. ” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978). The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. “Because of the unique nature of" }, { "docid": "3999329", "title": "", "text": "and the plaintiff only a key to the courthouse door dispensable once entry has been effected. The attorney remains bound to keep his client fully informed of settlement negotiations, to advise the client before signing a stipulation of settlement on his behalf, and, if the client has objected, to inform the court of this when presenting the settlement, so that it may devise procedures whereby the plaintiff, with a new attorney, may himself conduct further inquiry if so advised.” Saylor v. Lindsley, supra, 456 F.2d at 900 (emphasis added). The question of how to allocate decision-making between the attorney and the class in class litigation is a more difficult one. This problem was discussed at length in Pettway v. American Cast Iron Pipe Co., supra, 576 F.2d at 1216: “[T]he traditional notion of the ‘client’ deciding important litigation questions is often problematic in the class action context because of the difficulty in identifying the client. * *’ * The class itself often speaks in several voices. * * * it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole. If the attorneys decision in the face of * * * disagreement affects each class member more or less equally, * * * the attorneys views must be accorded great weight * * * ft Elsewhere the court considers the role of class plaintiffs: “[I]t remains unclear whether this model [the client deciding major litigation questions] can be carried over to the class action context, as no clear concept of the allocation of decision-making responsibili ty between the attorney and the class members has yet emerged. Certainly it is inappropriate to import the traditional understanding of the attorney-client relationship into the class context by simply substituting the named plaintiffs as the client. * * * Were the class attorney to treat the named plaintiff as the exclusive client, the interests of other class members might go unnoticed and unrepresented.” Id. at 1176 (citations omitted). In the case at bar, attorneys met with class" }, { "docid": "693183", "title": "", "text": "the Court deems them ineffective. Therefore, the Court will grant the defendant’s motion to strike the contingent requests to be excluded from the settlement. The objections, however, will stand, and the Court will consider them. III. As noted above, the Court must view the objections to the proposed settlement in light of its overarching obligation to determine that the settlement “is fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(1)(C). That determination, in turn, requires an assessment of the claims against the defendant and must be based on considerations of “ ‘the likelihood of success on the merits, the risk associated with and the expense and complexity of litigation, and the objections raised by class members.’ ” Granada Investments, Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir.1992). An objector to a proposed settlement has the burden of showing that the compromise is unreasonable, since preliminary approval makes the settlement presumptively reasonable. See Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir.1983). The Court will address each of the objections in turn. A. The first objection alleges that “[t]he settlement agreement was never approved by two of the class representatives, the other class representative has rescinded her approval of the settlement, and Class Counsel did not disclose these facts to the Court.” Objs. to Prop. Settlement at 10. The reaction of class members to the terms of a proposed settlement is an important factor in discerning the fairness of a settlement. Am.Jur.2d. Fed. Courts § 2134. However, because class counsel’s obligations run to the class as a whole, the class representatives’ assent is neither a sufficient nor a necessary condition to judicial approval of a class settlement. Kincade v. General Tire and Rubber Co., 635 F.2d 501, 508 (5th Cir.1981). That circumstance derives from the unique relationship of class counsel to the “plaintiffs” in the case. As the Kincade court explained: Because the “client” in a class action consists of numerous unnamed class members as well as the class representatives, and because the class itself often speaks in several voices ..., it may be impossible for the class attorney to do more" }, { "docid": "23180472", "title": "", "text": "(5th Cir. 1981), we stated: Appellants’ argment that the settlement cannot be applied to them because they did not authorize their attorney . .. to settle the case or otherwise consent to the settlement is also easily disposed of. Because the “client” in a class action consists of numerous unnamed class members as well as the representatives, and because “[t]he class itself often speaks in several voices ..., it may be impossible for the class attorney to do more than act in what he believes to be the best interests of the class as a whole .. .. ” Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1216 (5th Cir. 1978). The courts have recognized that the duty owed by class counsel is to the entire class and is not dependent on the special desires of the named plaintiffs. It has been held that agreement of the named plaintiffs is not essential to approval of a settlement which the trial court finds to be fair and reasonable. “Because of the unique nature of the attorney-client relationship in a class action, the cases cited by appellants holding that an attorney cannot settle his individual client’s case without the authorization of the client are simply inapplicable.” Kincade, 635 F.2d at 508; Flinn v. FMC Corp., 528 F.2d 1169, 1174 n.19 (4th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976) (“Appellants do not argue, nor may they under the authorities, that the assent of the class plaintiffs is essential to the settlement, provided the trial court finds it fair and reasonable.”); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir.), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974); Robertson v. National Basketball Ass’n, 72 F.R.D. 64 (S.D.N.Y.1976); Purcell v. Keane, 54 F.R.D. 455 (E.D.Pa.1972). Accord, Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). The rationale implicit in these decisions is sound: the named plaintiffs should not be permitted to hold the absentee" } ]

[ { "docid": "15348553", "title": "", "text": "it appears affirmatively that the defendant was not prejudiced. See Hodges v. United States, 243 F.2d 281, 283-284 (5 Cir. 1957) .... 426 F.2d at 479 (other citations omitted). . Since we find that appellants were prejudiced under Stirone we do not reach the question of whether reversal is required under Hodges, appellants having urged on this appeal that the district judge made numerous disparaging remarks with reference to defense counsel, and that these remarks fall within the Hodges paradigm. . The entire trial transcript consists of 3,665 pages; the court’s instructions to the jury consists of approximately forty-one pages. R. vol. 20, at 3579-619. . The four elements of a section 656 violation are: (1) that the accused was an officer, director, agent or employee of a bank; (2) that the bank was connected in some way with a national or federally insured bank; (3) that the accused willfully misapplied the monies or funds of the bank; and (4) that the accused acted with intent to injure and defraud the bank. United States v. Landers, 576 F.2d 94, 96 (5th Cir. 1978); United States v. Mann, 517 F.2d 259, 267 (5th Cir. 1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976). . Appellant Salinas requested the following instruction: You are instructed that no person may serve as a director of a bank unless he is the bona fide owner in his own right of the un-pledged and unencumbered stock in said bank of a par value of One Thousand Dollars ($1,000.00). In this connection, I charge you that, as to any offense charged against ENRIQUE M. SALINAS in which it is alleged he acted as a director of Citizens States Bank of Carrizo Springs, Texas, you must not only find beyond a reasonable doubt that he committed the act alleged, if he did, with the specific intent alleged, but you must further find beyond a reasonable doubt that, at the time of the alleged commission of such offense he was the bona fide owner in his own right of the unpledged and unencumbered stock in" } ]

[ { "docid": "12772409", "title": "", "text": "only issue in dispute with regard to the misapplication counts, namely, whether he misapplied the funds with an intent to injure and defraud the bank. In United States v. Mann, 517 F.2d 259 (5th Cir. 1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976), we identified the four essential elements of a violation of 18 U.S.C. § 656: «■ (1) that the accused was an officer, director, etc. of a bank, (2) that the bank was connected in some way with a national or federally insured bank, (3) that the accused wilfully misapplied the money, funds, etc. of said bank, and (4) that the accused acted with intent to injure and defraud said bank. It is well established that “the requisite intent can be inferred from the facts and circumstances shown at trial”. United States v. Tokoph, 514 F.2d 597, 603 (10th Cir. 1975). This intent exists “if a person acts knowingly and if the natural result of his conduct would be to injure or defraud the bank even though this may not have been his motive”. United States v. Schmidt, 471 F.2d 385, 386 (3d Cir. 1972). Furthermore, and as the trial judge properly instructed the jury, An intent to injure or defraud . is not inconsistent with a desire for the ultimate success and welfare of the bank . A wrongful misapplication of funds, even if made in the hope or belief that the bank’s welfare would ultimately be promoted is none the less a violation of the statute, if the necessary effect is or may be to injure or defraud the bank. Golden v. United States, 318 F.2d 357, 361-62 (1st Cir. 1963), citing Galbreath v. United States, 257 F. 648, 656 (6th Cir. 1918). In accord with these principles, evidence that a Section 656 violation eventually worked to the bank’s advantage does not negate the requisite intent: The ultimate or future possibility or probability of benefit to the bank is not a defense to a misapplication of funds at the time of purchase of the loans. The offense occurred and was complete" }, { "docid": "3386568", "title": "", "text": "defraud the savings and loan. Under § 657, one way that the Government may prove willfull misapplication of funds is by showing that a person has deliberately converted bank funds to his own use or to the use of a third person, or that the person has used the funds in violation of the law. Hernandez v. United States, 608 F.2d 1361, 1364 (10th Cir.1979). See also United States v. Bruun, 809 F.2d 397, 408 (7th Cir.1987) (interpreting a parallel provision in 18 U.S.C. § 656). Here the jury could well have concluded from the evidence before it that the Hopkins knew that savings and loans could not make political contributions, and therefore devised and pursued a scheme under which institutional funds would indirectly be routed to political action committees of their choosing. The Hopkins thus deliberately converted bank funds to the use of third persons and did so in violation of the law. The evidence was also sufficient to show that the Hopkins acted with intent to injure or defraud their savings and loan. Such intent “is proven by showing a knowing, voluntary act by the defendant, the natural tendency of which may have been to injure the bank even though such may not have been his motive.” United States v. Southers, 583 F.2d 1302, 1305 (5th Cir.1978). See also Bruun, 809 F.2d at 408; United States v. Farrell, 609 F.2d 816, 820 (5th Cir.1980). The jury could reasonably have concluded that the Hopkins’ activities had a natural tendency to injure their institution in at least two respects. First, the misapplication of funds reduced the amount of money available for lawful investment. Second, if federal bank examiners had learned of the illegal contributions, the FHLBB could have imposed various monetary sanctions on the savings and loan, including restricting the institution’s financial activities. Accordingly, the Government adequately proved that the Hopkins willfully misapplied the funds of the savings and loan they controlled and did so with intent to injure that institution. 4. Causing False Entries to be Made in the Records of an Institution Having Accounts Insured by the FSLIC" }, { "docid": "2321417", "title": "", "text": "should give attention to Rule 32 and 18 U.S.C. § 3664(a) in determining restitution, and also consider anew the defendants’ sentences of imprisonment on each count. See United States v. Shively, 715 F.2d 260, 269 (7th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1001, 79 L.Ed.2d 233 (1984). With this in mind, we now turn to the defendants’ challenges to their convictions. A. The defendants initially contend that the government failed to present sufficient evidence that they misapplied bank funds in violation of 18 U.S.C. § 656. They face a heavy burden in so arguing: the evidence admitted at trial must be viewed in the light most favorable to the government, and a conviction will be reversed only if no rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. United States v. Johnston, 876 F.2d 589, 593 (7th Cir.), cert. denied, 493 U.S. 953, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989). The evidence need not be inconsistent with every reasonable hypothesis of innocence as claimed by the defendants. United States v. Moya, 721 F.2d 606, 709-10 (7th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984). As the defendants correctly point out, the government must prove five things beyond a reasonable doubt to establish a violation of § 656: (1) that the defendant was a bank officer or director; (2) of a federally insured bank; (3) that the sum so misapplied exceeds $100; (4) that the defendant willfully misapplied funds of the bank; (5) with the intent to injure or defraud the bank. United States v. McCright, 821 F.2d 226, 230 (5th Cir.1987). The first three elements were stipulated, leaving at issue only the willful misapplication and the defendants’ intent to injure or defraud the Bank. The defendants now argue that the willful misapplication element was not met with respect to the loans made to Mathes, Schafer and Arnett. By their story, these transactions were not loans but merely “bookkeeping transfers” that did not result in any money leaving the Bank. As such, they assert that no funds" }, { "docid": "15435212", "title": "", "text": "82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Bearden, 423 F.2d 805, 810 (5th Cir. 1970). This standard is applied using two criteria: (1) whether the indictment contains the elements of the offense charged and sufficiently apprises the defendant so that he will not be misled while preparing his defense; and (2) whether the defendant is protected against another prosecution for the same offense. Russell v. United States, 369 U.S. at 763-764, 82 S.Ct. 1038; Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). We find that the counts here called into question are sufficient under the criteria set forth above. Each count, following the language of the statute; set forth all the elements of the offense: (1) that the accused was an officer of a bank, (2) that the bank was connected in some capacity with a National bank, (3) that the accused willfully misapplied the funds of said bank, and (4) that the accused acted with intent to injure and defraud said bank. Furthermore, the counts specified the date of the offenses, the amounts involved and the name of the bank. United States v. Mann, 517 F.2d 259, 267 (5th Cir. 1975); United States v. Scho-enhut, 576 F.2d 1010, 1024 (3rd Cir. 1978). Moreover, this court has held that “[i]n a prosecution under 18 U.S.C. § 656, where the offense is set out in the language of the statute, the omission of the means by which the offense was committed does not render the indictment insufficient.” United States v. Bearden, 423 F.2d at 810, citing United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968). Finally, the phrase “willful misapplication” is not of such vague and uncertain application so as to require supplemen tation by further averment. United States v. Mann, 517 F.2d 259, 267 (5th Cir. 1975). Accordingly, we hold Counts I and VIII of the indictment to be sufficient. Next we address Welliver’s contention that, because there was insufficient evidence as a matter of law to support the charges, the trial judge was in error in denying" }, { "docid": "16793875", "title": "", "text": "666-667, 2 S.Ct. at 521-522. Christo correctly concludes from Britton that bank funds are not criminally misapplied merely because they are applied in a manner unauthorized or prohibited by the Federal banking statutes, but he erroneously concludes that criminal misapplication and civil violations of maladministration must be mutually exclusive occurrences. There is nothing in Britton which compels this conclusion. The indictment counts against Christo allege the four essential elements of criminal misapplication and the overdraft method by which these elements were allegedly accomplished. The recitation of violation of 12 U.S.C. § 375a neither adds to the charges of misapplication or detracts from the substance of the charge. Under § 656, as applicable here, the indictment must allege and the government must prove beyond all reasonable doubt that (1) the accused was an executive officer of a bank, (2) that the bank was connected in some capacity with the Federal Reserve System, (3) that the accused willfully misapplied the funds of that bank, and (4) that the accused acted with intent to injure and defraud that bank. See U. S. v. Welliver, 601 F.2d 203, 207 (5th Cir. 1979). If the government can prove these elements, it matters not that the methods by which the misapplication occurs may also violate a civil regulatory statute. Therefore, we conclude that Counts III through XIX of the indictment were sufficient to charge an offense under 18 U.S.C. § 656. THE INSTRUCTION In the event the indictment is sustained, Christo argues in the alternative that the trial court committed plain error by instructing the jury that arguable violations of § 375a could serve as the factual basis for a criminal misapplication conviction regarding Counts III through XIX. In the initial summary of issues the trial court instructed the jury regarding § 375a as follows: Count III charges the Defendant with having obtained a loan of $35,000 from the First National Bank of Panama City, which loan was in excess of $5,000, which is a limitation, the Government says, placed on monies to officers or directors by the provisions of Title XII, United States Code, Section" }, { "docid": "3386567", "title": "", "text": "F.2d 1092, 1099 (11th Cir.1983). See also United States v. Cure, 804 F.2d 625, 629 (11th Cir.1986). 3. Misapplication of the Funds of an Institution Having Accounts Insured by the FSLIC Counts 4 through 25 of the indictment charged the defendants with violations of 18 U.S.C. § 657, which prohibits the knowing or willfull misapplication of funds of an institution having accounts insured by the FSLIC. Defendants Robert and Morten Hopkins were both convicted on all 22 counts. To establish an offense under § 657, the Government must prove that 1) the defendant was an officer, agent or employee of, or connected in some way with, a savings and loan association whose accounts were insured by FSLIC, 2) that he willfully misapplied funds of the association, and 3) that he acted with intent to injure or defraud the association. United States v. Stovall, 825 F.2d 817, 823 (5th Cir.1987). The Hopkins contend, without force, that the evidence was insufficient to prove that their misapplication of funds was willfull or that they intended to injure or defraud the savings and loan. Under § 657, one way that the Government may prove willfull misapplication of funds is by showing that a person has deliberately converted bank funds to his own use or to the use of a third person, or that the person has used the funds in violation of the law. Hernandez v. United States, 608 F.2d 1361, 1364 (10th Cir.1979). See also United States v. Bruun, 809 F.2d 397, 408 (7th Cir.1987) (interpreting a parallel provision in 18 U.S.C. § 656). Here the jury could well have concluded from the evidence before it that the Hopkins knew that savings and loans could not make political contributions, and therefore devised and pursued a scheme under which institutional funds would indirectly be routed to political action committees of their choosing. The Hopkins thus deliberately converted bank funds to the use of third persons and did so in violation of the law. The evidence was also sufficient to show that the Hopkins acted with intent to injure or defraud their savings and loan." }, { "docid": "3585411", "title": "", "text": "Talbot deposited money to the bank under the fictitious name of “Frank Nito.” The government contends that there were false entries, and a failure to meet reporting requirements, in connection with that deposit. Kington and Earney were indicted pursuant to 18 U.S.C. § 656 (criminalizing embezzlement by officers and directors of FDIC-regulated banks, and other national banks); 18 U.S.C. § 1005 (criminalizing false reporting and recordkeeping by officers and directors of banks); 31 U.S.C. §§ 1059 and 1081 (1982) (later recodified as 31 U.S.C. §§ 5322 and 5313, respectively) (criminalizing conduct which causes a bank to fail to file Currency Transaction Reports); 18 U.S. C. § 2 (general accessory liability); and, in Kington’s case, 26 U.S.C. § 7206 (filing a false income tax return). The indictment originally contained fifty-three counts, but eighteen were eventually dismissed. King-ton and Earney were found guilty on the remaining thirty-five counts. II The government and the defendants agree that the government must establish four elements in order to obtain a conviction under 18 U.S.C. § 656. First, the government must show that the accused was an officer, director, agent or employee of a bank. Second, the government must show that the bank was in some way connected with a nationally or federally insured bank. Third, the government must show that the accused willfully misapplied the monies or funds of the bank. Fourth, the government must show that the accused acted with the intent to injure or defraud the bank. The defendants’ first point of error goes to the fourth and final of these elements. The defendants challenge the court’s instruction to the jury with respect to the mens rea for a § 656 violation. The court’s instruction was as follows: “Intent to injure or defraud” means to act with the specific intent to deceive or cheat, ordinarily for the purpose of gaining some financial benefit or causing a financial loss to someone else. “Intent to injure or defraud” exists if the defendant acts knowingly and if the natural consequences of his conduct is or may be to injure the bank. However, it is not necessary" }, { "docid": "20052933", "title": "", "text": "acquittal as to the misapplication counts under 18 U.S.C. § 656. Section 656 makes it a crime for an officer or employee of any bank to “willfully misapply] any of the moneys, funds or credits of such bank.” To prove a violation under this statute, the government must show that “(1) the defendant was an executive officer of the bank, (2) the bank was connected in some way to the Federal Reserve System, (3) the defendant willfully misapplied the funds of the bank, and (4) the defendant acted with the intent to injure or defraud that bank.” United States v. Haddock, 961 F.2d 933, 934-35 (10th Cir.) [Haddock II], cert. denied, — U.S. -, 113 S.Ct. 88, 121 L.Ed.2d 50 (1992). In its brief, the government states that “ ‘a willful misapplication’ of bank funds ‘occurs when funds are distributed under a record which misrepresents the true state of the record with the intent that bank officials, bank examiners, or the [Federal Deposit Insurance Corporation] will be deceived.’ ” Aplt.Br. at 28 (quoting United States v. Twiford, 600 F.2d 1339, 1341 (10th Cir.1979)); see also United States v. Davis, 953 F.2d 1482, 1493 (10th Cir.1992) (also quoting Twi-ford in context of 18 U.S.C. § 657, a parallel statute protecting institutions insured by FSLIC), cert. denied — U.S.-, 112 S.Ct. 2286, 119 L.Ed.2d 210 (1992). The government argues that “[t]here is no requirement that the ‘misapplication’ itself be unlawful; what makes it criminal is that the use of bank funds occurs with the specific intent to ‘injure or defraud’ the bank.’ ” Aplt.Br. at 28-29 (quoting Hernandez v. United States, 608 F.2d 1361, 1364-65 (10th Cir.1979) (emphasis added)). The court instructed the jury that “intent to injure or defraud the bank may be shown by [a knowing], voluntary act by the defendant, the natural tendency of which may have been to injure the bank.” Rec., vol. XI, at 2312; see also United States v. Tokoph, 514 F.2d 597, 603-04 (10th Cir.1975). Mr. Evans allegedly loaned money under a false record and then used that money to recapitalize the bank. The natural" }, { "docid": "3585428", "title": "", "text": "to the government, and with all reasonable inferences and credibility choices drawn in support of the jury’s verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). We will affirm if any “rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The government’s case rested largely upon circumstantial evidence. The standard of review on sufficiency of the evidence questions is the same whether the evidence is direct or circumstantial. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-38, 99 L.Ed. 150 (1954). We will consider the individual counts separately, since the government must produce evidence linking the defendant in each count to the particular facts alleged in that count. Nonetheless, we note that where, as here, the government presents circumstantial evidence of an ongoing pattern of similar transactions, the jury may reasonably infer from the pattern itself that evidence otherwise susceptible of innocent interpretation is plausibly explained only as part of the pattern. A. The § 656 Misapplication Counts We have already summarized the elements which the government must establish to prove a violation of 18 U.S.C. § 656. The government must show first that the accused was an officer, director, agent, or employee of a bank; second, that the bank was in some way connected with a nationally or federally insured bank; third, that the accused willfully misapplied the monies or funds of the bank; and fourth, that the accused acted with the intent to injure or defraud the bank. United States v. Farrell, 609 F.2d 816, 818 (5th Cir.1980). Neither Kington nor Earney questions the sufficiency of the evidence on the first two elements. They do, however, contest the sufficiency of the evidence with respect to the third element of the misapplication counts. For analysis, we divide those counts into three groups: the “stock sale” counts, the “missing cash” counts, and one “mixed” count. 1. The “Stock Sale” Counts: Counts 13, 20, 23, 25, 27," }, { "docid": "3585412", "title": "", "text": "show that the accused was an officer, director, agent or employee of a bank. Second, the government must show that the bank was in some way connected with a nationally or federally insured bank. Third, the government must show that the accused willfully misapplied the monies or funds of the bank. Fourth, the government must show that the accused acted with the intent to injure or defraud the bank. The defendants’ first point of error goes to the fourth and final of these elements. The defendants challenge the court’s instruction to the jury with respect to the mens rea for a § 656 violation. The court’s instruction was as follows: “Intent to injure or defraud” means to act with the specific intent to deceive or cheat, ordinarily for the purpose of gaining some financial benefit or causing a financial loss to someone else. “Intent to injure or defraud” exists if the defendant acts knowingly and if the natural consequences of his conduct is or may be to injure the bank. However, it is not necessary that actual injury to the bank be shown because the essence of the offense is willfull conduct depriving the bank of the use of its funds and the right to decide how its funds are to be used. And the Government is not required to prove that the loans or transactions in question were bad loans or transactions, and it is not material whether the loans were later repaid—or not repaid—to the bank. The defendants aim their fire at the second sentence in this passage. They contend that the sentence effectively creates a mandatory presumption that equates “intent to injure or defraud” with “knowing action that has a natural tendency to injure.” If such a presumption were created, the instruction would inappropriately dilute the mental state required for conviction. It would then be necessary to vacate the defendants’ conviction. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Specific intent is generally hard to define and hard to prove. Not surprisingly, appeals in § 656 cases frequently involve challenges to the" }, { "docid": "21603701", "title": "", "text": "Cir.1987). To establish that the defendants willfully misapplied funds under § 657, the Government must prove beyond a reasonable doubt: (1) that Sun Belt Federal Bank was a lending institution authorized and acting under the laws of the United States; (2) that the accused was an officer, agent or employee of the bank; (3) that the accused knowingly and willfully misapplied funds belonging to Sun Belt; and (4) that the accused acted unlawfully and with intent to injure or defraud the bank. See United States v. Stovall, 825 F.2d 817, 823 (5th Cir.1987). The offense of making false entries under § 1006 includes the following elements: (1) that Sun Belt Federal Bank was a lending institution authorized and acting under the laws of the United States; (2) that the accused was an officer, agent or employee of the bank; (3) that the accused knowingly and willfully made, or caused to be made, a false entry concerning a material fact in a book, report, or statement of the bank; and (4) that the accused acted with intent to injure or defraud the bank, or any of its officers, auditors, examiners or agents. Id. at 822. Finally, to convict an accused for aiding or abetting an offense against the United States, the government must establish that the “‘defendant was associated with the criminal venture, participated in it as something he wished to bring about, and sought by his actions to make it succeed.’ ” United States v. Longoria, 569 F.2d 422, 425 (5th Cir.1978), quoting United States v. Martinez, 555 F.2d 1269, 1272 (5th Cir.1977). The record contains ample evidence of a scheme by Tullos, Fazio and others to deceive the Board of Directors of Sun Belt Bank and federal inspectors of the full use of the $8,300,000 in loan proceeds. The defendants concealed their plan to use $3,000,000 of these proceeds to clear the Lafayette trailer park from Sun Belt’s books. To avoid problems with regulations imposing single borrower loan limits, the defendants also concealed the nominee or strawman role of Blanton and his corporation, Ridgeland Builders. Tullos’ participation in the" }, { "docid": "12772408", "title": "", "text": "it is not required to draw the inference ...” These additional words gave further assurance that the jury would understand the burden of proof to which the prosecution is held. Although we do not now require an instruction more carefully worded than that set forth in Wilkinson, we favor the instant charge as a more effective way of avoiding the abuse condemned in Mann. We hold that the instant charge did not shift the burden of proof on the issue of intent. The trial judge was careful to avoid such a result. III. EXCLUSION OF THE FORECLOSURE PROCEEDINGS During the trial, Tidwell’s counsel offered as evidence certified copies of the complaint and final judgment in a mortgage foreclosure action by the Eglin National Bank against Marvin Chapman. The trial judge, conceding relevance, sustained an objection to the introduction of this evidence on the ground that it was repetitious. T. 420-21. On appeal, Tidwell argues that exclusion of the evidence as to the mortgage foreclosure action was reversible error because it crippled his defense on the only issue in dispute with regard to the misapplication counts, namely, whether he misapplied the funds with an intent to injure and defraud the bank. In United States v. Mann, 517 F.2d 259 (5th Cir. 1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976), we identified the four essential elements of a violation of 18 U.S.C. § 656: «■ (1) that the accused was an officer, director, etc. of a bank, (2) that the bank was connected in some way with a national or federally insured bank, (3) that the accused wilfully misapplied the money, funds, etc. of said bank, and (4) that the accused acted with intent to injure and defraud said bank. It is well established that “the requisite intent can be inferred from the facts and circumstances shown at trial”. United States v. Tokoph, 514 F.2d 597, 603 (10th Cir. 1975). This intent exists “if a person acts knowingly and if the natural result of his conduct would be to injure or defraud the bank even though this" }, { "docid": "8435459", "title": "", "text": "that the prosecution would be relieved of having to prove beyond a reasonable doubt a material element of the crime. Here, as in Sandstrom, the challenge is that the instruction reduced the prosecution’s burden of proving the requisite state of mind for the offense. In Sandstrom, the statutory mens rea the government was required to prove was not in dispute. Yet, in assessing whether a jury instruction improperly lowers the government’s burden of proof, a threshold inquiry must be to determine the government’s burden of proof — i. e., when an instruction concerning the accused’s state of mind is the issue, what is the requisite mens rea for the crime? Section 656 of Title 18 of the United States Code prescribes punishment for any bank official who “willfully misapplies” bank funds, but the statute does not define “willfully.” The courts have uniformly construed .the statute to include the “intent to injure or defraud the bank” as a material element of the crime. E. g., United States v. Farrell, 609 F.2d 816, 819 (5th Cir. 1980); United States v. Mann, 517 F.2d 259, 267 and n. 3 (5th Cir. 1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976); Seals v. United States, 221 F.2d 243, 245 (8th Cir. 1955). The terms “willfully” and “intent,” unfortunately, have a statutory and common law history that is less than unequivocal. In its various usages, “intent” may denote the mental state that the American Law Institute’s Model Penal Code designates as “purpose,” or the mental state that the Model Penal Code designates as “knowledge,” or a general notion of mens rea, or the particular mens rea required for a particular crime. See United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 630, 62 L.Ed.2d 575 (1980); W. LaFave and A. Scott, Handbook on Criminal Law, 195-203 (1972). Similarly, the term “willfully” as employed in diverse statutes may correspond to any of the different levels of the Model Penal Code’s hierarchy of culpable states of mind (i. e., purpose, knowledge, recklessness, or negligence). See W. LaFave and A. Scott, supra," }, { "docid": "3585429", "title": "", "text": "innocent interpretation is plausibly explained only as part of the pattern. A. The § 656 Misapplication Counts We have already summarized the elements which the government must establish to prove a violation of 18 U.S.C. § 656. The government must show first that the accused was an officer, director, agent, or employee of a bank; second, that the bank was in some way connected with a nationally or federally insured bank; third, that the accused willfully misapplied the monies or funds of the bank; and fourth, that the accused acted with the intent to injure or defraud the bank. United States v. Farrell, 609 F.2d 816, 818 (5th Cir.1980). Neither Kington nor Earney questions the sufficiency of the evidence on the first two elements. They do, however, contest the sufficiency of the evidence with respect to the third element of the misapplication counts. For analysis, we divide those counts into three groups: the “stock sale” counts, the “missing cash” counts, and one “mixed” count. 1. The “Stock Sale” Counts: Counts 13, 20, 23, 25, 27, 43 and 45 In each of these counts the government alleged that Kington, and in some counts Earney, had arranged financing through the bank for persons who used the proceeds to purchase bank stock from Kington, that Kington and Earney made a profit from these transactions, and that Kington and Earney had not disclosed to the bank their interest in the loans. If the government presented evidence to prove up this theory, that evidence would permit the jury to infer both a willful misapplication and an intent to defraud the bank. The jury could conclude that Kington and Earney intended to deceive the bank in order to profit from loans that the bank would not have made if it were aware of the loans’ true purpose and the personal interests of the bank officers, and that Kington and Earney knew their activity to be fraudulent. Kington conceded at trial that he sold the stock as alleged, and that he made a profit. Kington and Earney also concede that the loan proceeds were used to pay" }, { "docid": "21563827", "title": "", "text": "the standard of review 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). Moreover, every reasonable inference from the evidence must be drawn in the government’s favor. United States v. Cooperative Theatres of Ohio, Inc., 845 F.2d 1367, 1373 (6th Cir.1988). The evidence need not exclude every logical hypothesis other than guilt. United States v. Green, 548 F.2d 1261, 1266 (6th Cir.1977). The crime of willful misapplication of bank funds is defined at 18 U.S.C. § 656, as follows: Whoever, being an officer, director, agent or employee of [any insured bank], embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both. In order to establish the crime, \"the Government must show ... that the defendant acted willfully, that he misapplied funds, moneys, or credits belonging to or intrusted to the custody of the bank and that he did so with the intent to injure or defraud the bank.\" United States v. Duncan, 598 F.2d 839, 858 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). The intent to injure or defraud is required, despite its absence from the statutory language. Id.; Logsdon v. United States, 253 F.2d 12, 14-15 (6th Cir.1958). Woods argues that the evidence was insufficient to show that the bank was injured because there was only a paper transaction, a matter of form and not of substance, which effected no change in the bank’s financial status. In essence, he suggests that he has not misapplied bank funds as required by the statute, contending that section 656 only applies to a misapplication" }, { "docid": "5689168", "title": "", "text": "is equivalent to intent to injure or defraud,’ and a conviction may be returned notwithstanding the fact that the bank has suffered no actual injury.” Id. (citations omitted). The element of misapplication requires proof of conversion of bank funds, credits, or moneys. It is not necessary to prove, however, that the defendant himself was the beneficiary of the misapplication. United States v. Gallagher, 576 F.2d 1028, 1044 (3d Cir. 1978). There was testimony that Thomas cancelled William Fendrock’s loan obligation to the bank by charging the debt to the bank’s discount installment loan account which was overvalued as a result of computer error, and that the proper procedure would have been to charge the debt to the bad debt reserve. There is no question that Fendrock benefitted financially from this action. The prosecution argued that Thomas charged the discount installment loan account instead of the bad debt reserve so that the writing off of the loan as an uncol-lectable debt would not reflect adversely on his performance as bank president. We conclude that the jury reasonably could have inferred from this that Thomas acted with intent to defraud the bank and that there was a conversion of funds or credits to Fendrock. V. The judgment of conviction will be affirmed on all counts. . Section 656 provides: Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank, or a receiver of a national bank, or any agent or employee of the receiver, or a Federal Reserve Agent, or an agent or employee of a Federal Reserve Agent or of the board of Governors of the Federal Reserve System, embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank or any moneys, funds, assets or securities intrusted to the custody or care of such bank, or to the custody or care of any such agent, officer, director, employee or receiver, shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the" }, { "docid": "1355381", "title": "", "text": "principal, had the requisite intent to defraud the Bank, or that Cotter had the requisite intent to aid and abet the crimes. a. Misapplication of Bank Funds An executive officer of a bank which is connected in some capacity with the Federal Reserve System may be convicted of violating section 656 if he willfully misapplies bank funds with the intent to injure or defraud the bank. United States v. Unruh, 855 F.2d 1363, 1367 (9th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 513, 102 L.Ed.2d 548 (1988). Funds are misapplied when they are disbursed under a record containing misrepresentations of fact with the intent to deceive bank officials, examiners or the Federal Deposit Insurance Corporation (“FDIC”). United States v. Kennedy, 564 F.2d 1329, 1339 (9th Cir.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). Intent to defraud may be inferred from a defendant’s reckless disregard of the bank's interests. United States v. Stozek, 783 F.2d 891, 893 (9th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 284, 93 L.Ed.2d 259 (1986). Intent to injure need not be shown if there is intent to deceive or defraud. United States v. Wolf, 820 F.2d 1499, 1503 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1988). Witnesses testified that Castro and Cotter received commissions from loan applicants in exchange for approving the loans; that Cotter submitted loan applications containing false information to Castro; that Castro approved the loans either knowing some of the information was incorrect or without checking it; and that Cotter made concerted efforts to ensure Castro did not jeopardize his position at the Bank. One witness testified he was told by Castro that he did not have to repay his loan at all. The jury could infer beyond a reasonable doubt that Castro acted in reckless disregard of the Bank’s interests and that Cotter aided and abetted Castro. Cotter argues that Castro’s conduct was validated by evidence which established his entitlement to two defenses compelling his acquittal; and, as a result, Cotter could not be convicted of aiding and abetting" }, { "docid": "217905", "title": "", "text": "such authorized or unlawful appropriations of monies, funds or credits which is illegal, but only those acts willfully done with specific intent to defraud and deceive the bank.’ (Tr. 473) United States v. Kernodle, 367 F.Supp. 844, 850 (1973) (N.C., D.C.)” The first portion of this suggested addition to the standard instruction for violation of 18 U.S.C. § 657 (willful misapplication of funds) is limited to a discussion of the government’s burden of proof in establishing false entries. As noted above, proof of a false entry is unnecessary to establish a violation of § 657 as a false entry is not an element of the crime of misappropriating savings and loan funds, 18 U.S.C. § 657; see also United States v. Tidwell, 559 F.2d 262, 265 (the four essential elements of a violation of 18 U.S.C. § 656 (a parallel provision to § 657 applying to banks rather than savings and loans) are: “(1) that.the accused was an officer ... of a. bank, (2) that the bank was connected in some way with a nationally or federally insured bank, (3) that the accused wilfully misapplied the money ... of said bank, and (4) that the accused acted with intent to injure and defraud said bank.”), and thus there is no merit in Marquardt’s contention that the court’s failure to add the requested language was error. With respect to the second half of Marquardt’s requested addition to the standard instruction for 18 U.S.C. § 657, we note that the court’s instruction provided: “To misapply means something more than irregular or negligent use of a savings and loan association’s funds or funds entrusted to the savings and loan association. It means the unlawful taking or conversion of monies, funds or credits of the association or entrusted to the association by association officers or employees for his or her own benefit or for the use and benefit of some other person done willfully and with specific intent to injure or defraud the bank.” We fail to understand how the second portion of Marquardt’s requested addition to the instructions would have substantially altered the" }, { "docid": "2321418", "title": "", "text": "defendants. United States v. Moya, 721 F.2d 606, 709-10 (7th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984). As the defendants correctly point out, the government must prove five things beyond a reasonable doubt to establish a violation of § 656: (1) that the defendant was a bank officer or director; (2) of a federally insured bank; (3) that the sum so misapplied exceeds $100; (4) that the defendant willfully misapplied funds of the bank; (5) with the intent to injure or defraud the bank. United States v. McCright, 821 F.2d 226, 230 (5th Cir.1987). The first three elements were stipulated, leaving at issue only the willful misapplication and the defendants’ intent to injure or defraud the Bank. The defendants now argue that the willful misapplication element was not met with respect to the loans made to Mathes, Schafer and Arnett. By their story, these transactions were not loans but merely “bookkeeping transfers” that did not result in any money leaving the Bank. As such, they assert that no funds were ever misapplied and therefore their convictions must be reversed. It is important to note at the outset that the defendants’ argument fails to dis tinguish between the conspiracy count and the other substantive counts alleged against them. Essentially, they are trying to establish that the overt acts alleged, in the conspiracy count (which include the Mathes, Schafer, Arnett, and Curry Ice transactions) were not substantive violations of the misapplication statute. But this is simply the wrong approach. It has long been the law of this circuit that overt acts do not have to be substantive crimes themselves. Yates v. United States, 354 U.S. 298, 334, 77 S.Ct. 1064, 1084, 1 L.Ed.2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Rather, the relevant inquiry with respect to the conspiracy count is merely whether the overt acts were in furtherance of the defendants’ conspiracy to misapply the Bank’s funds. In light of the above, we believe few would question that the Mathes, Schafer, Arnett," }, { "docid": "3386569", "title": "", "text": "Such intent “is proven by showing a knowing, voluntary act by the defendant, the natural tendency of which may have been to injure the bank even though such may not have been his motive.” United States v. Southers, 583 F.2d 1302, 1305 (5th Cir.1978). See also Bruun, 809 F.2d at 408; United States v. Farrell, 609 F.2d 816, 820 (5th Cir.1980). The jury could reasonably have concluded that the Hopkins’ activities had a natural tendency to injure their institution in at least two respects. First, the misapplication of funds reduced the amount of money available for lawful investment. Second, if federal bank examiners had learned of the illegal contributions, the FHLBB could have imposed various monetary sanctions on the savings and loan, including restricting the institution’s financial activities. Accordingly, the Government adequately proved that the Hopkins willfully misapplied the funds of the savings and loan they controlled and did so with intent to injure that institution. 4. Causing False Entries to be Made in the Records of an Institution Having Accounts Insured by the FSLIC Counts 26 through 47 of the indictment stated charges against all three of the defendants here under 18 U.S.C. §§ 2, 1006, namely, that they knowingly and willfully made or caused to be made false entries in the records of an institution having accounts insured by the FSLIC. Robert and Morten Hopkins were convicted on all 22 of these counts; John Harrell was convicted on only two. The Hopkins contend that the evidence was insufficient to show that they acted with the requisite mental state; Harrell contends that the evidence was insufficient to show that he caused false entries to be made. These arguments have no merit. To prove a violation of § 1006 the Government must show that 1) the defendant was an officer, agent, or employee of an institution having accounts insured by the FSLIC, 2) that he knowingly and willfully made a false entry in the records or books of the institution, and 3) that he acted unlawfully and intended to injure, defraud, or deceive the bank or any of its officers," } ]

[ { "docid": "22531115", "title": "", "text": "must decide whether the victim's death by drug overdose was a foreseeable result of the defendant's drug-trafficking offense. 569 U.S. ----, 133 S.Ct. 2049, 185 L.Ed.2d 884 (2013). II As originally enacted, the Controlled Substances Act, 84 Stat. 1242, 21 U.S.C. § 801 et seq., \"tied the penalties for drug offenses to both the type of drug and the quantity involved, with no provision for mandatory minimum sentences.\" DePierre v. United States, 564 U.S. ----, ----, 131 S.Ct. 2225, 2229, 180 L.Ed.2d 114 (2011). That changed in 1986 when Congress enacted the Anti-Drug Abuse Act, 100 Stat. 3207, which redefined the offense categories, increased the maximum penalties and set minimum penalties for many offenders, including the \"death results\" enhancement at issue here. See id., at 3207-4. With respect to violations involving distribution of a Schedule I or II substance (the types of drugs defined as the most dangerous and addictive 1) the Act imposes sentences ranging from 10 years to life imprisonment for large-scale distributions, § 841(b)(1)(A), from 5 to 40 years for medium-scale distributions, § 841(b)(1)(B), and not more than 20 years for smaller distributions, § 841(b)(1)(C), the type of offense at issue here. These default sentencing rules do not apply, however, when \"death or serious bodily injury results from the use of [the distributed] substance.\" § 841(b)(1)(A)-(C). In those instances, the defendant \"shall be sentenced to a term of imprisonment which ... shall be not less than twenty years or more than life,\" a substantial fine, \"or both.\" 2Ibid. Because the \"death results\" enhancement increased the minimum and maximum sentences to which Burrage was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt. See Alleyne v. United States, 570 U.S. ----, ----, 133 S.Ct. 2151, 2162-2163, 186 L.Ed.2d 314 (2013);Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Thus, the crime charged in count 2 of Burrage's superseding indictment has two principal elements: (i) knowing or intentional distribution of heroin, § 841(a)(1),3 and (ii) death caused by (\"resulting from\") the use of that" } ]

[ { "docid": "19462308", "title": "", "text": "\"death results\" enhancement as the Supreme Court did in Burrage : as an element of the crime. Krieger , 842 F.3d at 500 (\"[T]he rule announced in Burrage altered the range of conduct that the law punishes.\"); Burrage , 134 S.Ct. at 887 (characterizing the \"death results\" enhancement as \"an element that must be submitted to the jury and found beyond a reasonable doubt\"). Had we thought ourselves bound by Alleyne 's non-retroactivity (which we acknowledged) to treat Burrage as changing only the scope of a sentencing factor, we presumably would have relied on Narvaez when we held that Krieger's Burrage error was cognizable under § 2255. Instead, consistent with Burrage 's treatment of the enhancement as an element of the crime, we relied on the progeny of Davis v. United States , 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) to hold that Krieger could assert her claim. Krieger , 842 F.3d at 497-500. It is worth noting that the government itself conceded in Kriege r that \" Burrage is substantive because it defines an essential element of a federal crime....\" 842 F.3d at 497. And even in circuits that maintain-contrary to our approach in Narvaez -that a challenge to a mandatory sentencing enhancement is not cognizable on collateral review, Burrage claims are cognizable precisely because they go to the validity of a conviction rather than to the validity of a sentence. Compare Sun Bear v. United States , 644 F.3d 700, 705 (8th Cir. 2011) (en banc) (holding that an error under the mandatory guidelines was not a miscarriage of justice because the petitioner's sentence remained \"within the statutory maximum authorized for the offense\"), with Ragland v. United States , 784 F.3d 1213, 1214 (8th Cir. 2015) (holding that a petitioner's challenge under Burrage is \"a challenge to the validity of his conviction\"). To be sure, Krieger did not address the standard of review that would be applicable when a court collaterally reviews whether there is sufficient evidence to support application of the enhancement according to Burrage 's standard of but-for causation. In that respect, Krieger" }, { "docid": "7912320", "title": "", "text": "RILEY, Chief Judge. Dorian Ragland appeals from the denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, asserting his trial counsel “provided ineffective assistance by failing to challenge the timeliness of his indictment pursuant to the limitations imposed by 18 U.S.C. § 3282.” Ragland also requests we expand the certificate of appealability and remand for further consideration in light of Burrage v. United States, 571 U.S.-, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), which was decided after the district court denied § 2255 relief. Upon de novo re view, see United States v. Apker, 241 F.3d 1060, 1062 (8th Cir.2001), we affirm in part, vacate in part, and remand for further proceedings. I. BACKGROUND Dorian Ragland was a heroin dealer in Cedar Rapids, Iowa. On January 9, 2001, Ragland sold heroin to Zack Lane at Lane’s apartment, sitting on Lane’s couch and passing around a plate full of heroin as Lane got high. After Ragland left, Lane’s roommate helped Lane to bed around midnight. Lane was fading in and out of consciousness as his roommate walked him to his bedroom. Lane’s roommate found him dead the next morning “hunched over a laundry basket.” The medical examiner concluded Lane died from a central nervous system depression caused by the drugs he had taken. On January 9, 2006, the government filed a one-count information against Rag-land, charging him with distributing heroin resulting in Lane’s death in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On January 10, 2006, a grand jury indicted Rag-land for the same charge. On April 10, 2006, the government moved without resistance to dismiss the criminal information, which the district court granted. When the jury in Ragland’s first trial deadlocked, the district court granted a mistrial. On retrial, the jury convicted Ragland, finding the heroin Ragland distributed “was a contributing factor” in Lane’s death. The district court entered judgment and sentenced Ragland to 240 months imprisonment. Ragland appealed, and we affirmed. See Ragland, 555 F.3d at 708-09. Ragland challenged the sufficiency of the evidence against him, arguing in his" }, { "docid": "7912322", "title": "", "text": "brief that “[t]he prosecution had a weak circumstantial case,” but did not explicitly challenge causation as he does on collateral review. See id. at 715. In 2010, Ragland, acting pro se, timely sought relief under 28 U.S.C. § 2255, arguing, among other things, that his counsel was ineffective for failing to assert a statute of limitations defense based on 18 U.S.C. § 3282 and failing to challenge the application of the enhanced penalty provision of 21 U.S.C. § 841(b)(1)(C). Relying in part on then-controlling Eighth Circuit precedent, the district court determined Ragland’s ineffective assistance of counsel claims were without merit and denied Rag-land a certificate of appealability. We granted a certificate of appealability limited to whether “Ragland’s trial counsel was ineffective for failing to raise a statute-of-limitations defense.” Ragland asks that we expand the certificate and remand in light of Burrage. We consider each issue in turn. II. DISCUSSION A. Statute of Limitations Defense Ragland’s ineffective assistance of counsel claim is subject to the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Holder v. United States, 721 F.3d 979, 986 (8th Cir.2013). To obtain relief, Ragland must show his trial counsel’s performance was both “deficient” — that is, “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” — and “that the deficient performance prejudiced the de fense.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. A trial counsel’s performance is deficient when it falls “below an objective standard of reasonableness” “under prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. In measuring counsel’s performance, we apply “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. “We look at counsel’s challenged conduct at the time of his representation of the defendant and we avoid making judgments based on hindsight.” Fields v. United States, 201 F.3d 1025, 1027 (8th Cir.2000). Maintaining the district court erred in concluding the indictment was timely, Ragland contends his counsel was constitutionally ineffective" }, { "docid": "9248301", "title": "", "text": "it must decide whether the victim's death by drug overdose was a foreseeable result of the defendant's drug-trafficking offense. 569 U.S. ----, 133 S.Ct. 2049, 185 L.Ed.2d 884 (2013). II As originally enacted, the Controlled Substances Act, 84 Stat. 1242, 21 U.S.C. § 801 et seq., \"tied the penalties for drug offenses to both the type of drug and the quantity involved, with no provision for mandatory minimum sentences.\" DePierre v. United States, 564 U.S. ----, ----, 131 S.Ct. 2225, 2229, 180 L.Ed.2d 114 (2011). That changed in 1986 when Congress enacted the Anti-Drug Abuse Act, 100 Stat. 3207, which redefined the offense categories, increased the maximum penalties and set minimum penalties for many offenders, including the \"death results\" enhancement at issue here. See id ., at 3207-4. With respect to violations involving distribution of a Schedule I or II substance (the types of drugs defined as the most dangerous and addictive ) the Act imposes sentences ranging from 10 years to life imprisonment for large-scale distributions, § 841(b)(1)(A), from 5 to 40 years for medium-scale distributions, § 841(b)(1)(B), and not more than 20 years for smaller distributions, § 841(b)(1)(C), the type of offense at issue here. These default sentencing rules do not apply, however, when \"death or serious bodily injury results from the use of [the distributed] substance.\" § 841(b)(1)(A)-(C). In those instances, the defendant \"shall be sentenced to a term of imprisonment which ... shall be not less than twenty years or more than life,\" a substantial fine, \"or both.\" Ibid. Because the \"death results\" enhancement increased the minimum and maximum sentences to which Burrage was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt. See Alleyne v. United States, 570 U.S. ----, ----, 133 S.Ct. 2151, 2162-2163, 186 L.Ed.2d 314 (2013); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Thus, the crime charged in count 2 of Burrage's superseding indictment has two principal elements: (i) knowing or intentional distribution of heroin, § 841(a)(1), and (ii) death caused by (\"resulting from\") the" }, { "docid": "8148975", "title": "", "text": "F.2d 1515, 1520-21 (11th Cir.1985) (en banc). . While Webb has not directed us to any definition of the two terms, foreseeability is widely defined as an element of proximate cause. See Black’s Law Dictionary 721 (9th ed. 2009) (“Foreseeability, along with actual causation, is an element of proximate cause in tort law.”). . Carroll attended a party at Defendant Laythe’s residence. Patterson, 38 F.3d at 142. Defendant Patterson brought controlled substances to the party, \"including Demerol, Mepergan, morphine sulfate, and Valium, all in tablet or capsule form.” Id. Carroll later took some of the pills Patterson gave to Lay the, and injected some heroin that Patterson melted down. Id. Everyone involved went to sleep, and when Patterson and Laythe awoke, they found Carroll dead. Id. . The relevant wording of § 841(b)(1)(A), which applies to different controlled substances, is the same as the enhanced penalty in § 841(b)(1)(C): (1)(A) In the case of a violation of subsection (a) ... such person shall be sentenced to a term of imprisonment which ... if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life.... 21 U.S.C. § 841(b)(1)(A) (emphasis added). . McIntosh pled guilty to conspiracy to manufacture methamphetamine. McIntosh, 236 F.3d at 970. His plea agreement “left open for the district court’s determination at sentencing whether McIntosh was subject to an enhanced sentence because of Jessica’s death.” Id. at 970-71. . Other circuits have also opined that § 841(b)(1)(C) (or provisions with similar language) creates a strict liability regime. See United States v. Carbajal, 290 F.3d 277, 283 (5th Cir.2002) (interpreting sentencing guideline with similar \"death ... resulted from” language to § 841(b)(1)(C) and determining that it \"is a strict liability provision that applies without regard for common law princi pies of proximate cause or reasonable foreseeability”); United States v. Rebmann, 226 F.3d 521, 522, 525 (6th Cir.2000) (indicating in dicta that § 841(b)(1)(C) \"[o]n its face, ... is, in effect, a strict liability statute with respect to the injury or death of another arising out of" }, { "docid": "19462309", "title": "", "text": "it defines an essential element of a federal crime....\" 842 F.3d at 497. And even in circuits that maintain-contrary to our approach in Narvaez -that a challenge to a mandatory sentencing enhancement is not cognizable on collateral review, Burrage claims are cognizable precisely because they go to the validity of a conviction rather than to the validity of a sentence. Compare Sun Bear v. United States , 644 F.3d 700, 705 (8th Cir. 2011) (en banc) (holding that an error under the mandatory guidelines was not a miscarriage of justice because the petitioner's sentence remained \"within the statutory maximum authorized for the offense\"), with Ragland v. United States , 784 F.3d 1213, 1214 (8th Cir. 2015) (holding that a petitioner's challenge under Burrage is \"a challenge to the validity of his conviction\"). To be sure, Krieger did not address the standard of review that would be applicable when a court collaterally reviews whether there is sufficient evidence to support application of the enhancement according to Burrage 's standard of but-for causation. In that respect, Krieger technically leaves the standard-of-review question open. Yet it would be in significant tension with Krieger 's treatment of the enhancement as an element of the crime to review Perrone's claim under the regime previously applicable to sentencing factors. We thus reject the government's attempt to slice Burrage 's characterization of the \"death results\" enhancement (as an element of crime) away from its definition of what application of that enhancement requires (but-for causation). Because Alleyne is not retroactive, Perrone could not get relief on the ground that the \"death results\" question went to a judge rather than jury. Once he is before us with a cognizable claim, however, there is no reason for us to describe his claim as something it is not. Burrage , unlike Alleyne , is retroactive, and it makes clear that Perrone's claim goes to his innocence of a crime, not a sentence. Whether the government has proven an element of the crime is always a question for the jury. That means that Perrone's burden is to show that it is more" }, { "docid": "10793053", "title": "", "text": "BENTON, Circuit Judge. This case is on remand from the Supreme Court of the United States. Burrage v. United States, — U.S.-, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). A jury convicted Marcus Andrew Burrage of distribution of heroin and distribution of heroin resulting in death, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court sentenced him to 20 years’ imprisonment, consistent with § 841(b)(1)(C)’s prescribed minimum. Burrage appealed, challenging, among other things, the jury instructions for § 841(b)(1)(C). This court affirmed. United States v. Burrage, 687 F.3d 1015 (8th Cir.2012). In light of the Supreme Court’s ruling in Burrage, this court reverses the conviction on Count 2, for distribution of heroin resulting in death, and remands. This court’s opinion of March 7 is vacated and this opinion substituted for it. I. Burrage objected to the jury instructions for 21 U.S.C. § 841(b)(1)(C), a penalty provision increasing the minimum sentence for distribution of heroin “if death or serious injury results from the use of such substance.” (emphasis added). The district court instructed the jury: INSTRUCTION NO. 10 ELEMENTS OF THE OFFENSE — COUNT TWO-DISTRIBUTION OF HEROIN RESULTING IN DEATH The crime of distributing heroin resulting in death, as charged in Count Two of the Indictment, has three essential elements, which are: 1. On or about April 14, 2010, the Defendant intentionally distributed heroin; and 2. At the time of the transfer, the Defendant knew that it was heroin; and 3. A death resulted from the use of the heroin. For you to find that a death resulted from the use of heroin, the Government must prove, beyond a reasonable doubt, that the heroin distributed by the Defendant was a contributing cause of Joshua Banka’s death. A contributing cause is a factor that, although not the primary-cause, played a part in the death[.] For you to find the Defendant guilty of the crime charged under Count Two the Government must prove all of these essential elements beyond a reasonable doubt; otherwise you must find the Defendant not guilty of this crime under Count Two. (emphasis added). The district court" }, { "docid": "9280998", "title": "", "text": "years imprisonment up to a maximum of life imprisonment.\" Plea Agreement, United States v. Wheeler , No. 3:06-cr-363 (W.D.N.C. filed April 3, 2007), ECF No. 66 at 1. In March 2008, the district court sentenced Appellant to 120 months of imprisonment, the statutory mandatory minimum, on Count One. In so doing, it determined that the 1996 Conviction was a \"felony drug offense,\" and as a result, Appellant's enhanced statutory range was 10 years to life in prison. See 21 U.S.C. § 841(b)(1)(B) (\"If any person commits ... a [ § 841(b)(1)(B) ] violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment....\" (emphasis supplied) ); id . § 802(44) (defining \"[f]elony drug offense\" as \"an offense that is punishable by imprisonment for more than one year under any [state] law ... that prohibits or restricts conduct relating to narcotic drugs\"). Without the 1996 Conviction, Appellant's United States Sentencing Guidelines (\"Guidelines\") range would have been 70-87 months, and his statutory sentencing range would have been 5 to 40 years. The district court noted, \"[T]he sentence that is required to be imposed upon you is a harsh sentence. It's a mandatory minimum sentence. I don't have any discretion in that area.\" J.A. 85-86. We affirmed Appellant's conviction and sentence. See United States v. Wheeler , 329 Fed.Appx. 481 (4th Cir. 2009) (per curiam). B. First § 2255 Motion On June 29, 2010, Appellant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He alleged that his counsel was ineffective for, inter alia, failing to argue that the 1996 Conviction did not qualify to enhance his sentence. See J.A. 116-17 (\"[C]ounsel in this matter[ ] allowed an error to proceed uncorrected.... The term of [the 1996 Conviction] didn't exceed one year[;] the maximum punishment that he could receive was[ ] eight months....\"). The district court dismissed the § 2255 motion on March 17, 2011, and denied a certificate" }, { "docid": "15022167", "title": "", "text": "(rejecting an argument that the defendant’s “conduct must meet all the section 5K2.1 factors before a court may use the section as a basis for an upward departure”). The district court gave due consideration to these mitigating circumstances in finding a sentence of 60 months was appropriate, as opposed to a longer sentence. We also note Nossan was potentially subject to either a 20-year mandatory minimum sentence, see § 841(b)(1)(C) (“[I]f death or serious bodily injury results from the use of such substance [such person] shall be sentenced to a term of imprisonment of not less than 20 years or more than life.”); see also § 841(b)(1)(A); United States v. Krieger, 628 F.3d 857, 867 (7th Cir.2010), petition for cert. filed, — U.S.L.W.-(U.S. May 6, 2011) (No. 10-10392, 10A838) (explaining, once the district court found by a preponderance of the evidence that the prescription fentanyl patch the defendant gave to her friend caused the friend’s death, “the [sentencing] court was obliged to impose the [20-year] mandatory minimum sentence”), or a significantly higher advisory Guidelines range sentence of 235 to 293 months, see U.S.S.G. § 2Dl.l(a)(2) (providing that a defendant convicted under 21 U.S.C. § 841(b)(1)(A) is subject to a base offense level of 38 if “the offense of conviction establishes that death ... resulted from the use of the substance”), because Nossan’s distribution of heroin resulted in death. Neither the mandatory minimum nor the applicability of § 2Dl.l(a)(2) is at issue here, see Greenlaw v. United States, 554 U.S. 237, 240, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008), but they are instructive in demonstrating Nossan’s 5-year sentence was not substantively unreasonable. Cf. United States v. Kane, 639 F.3d 1121, 1137 n. 11 (8th Cir.2011) (“While this mandatory minimum [sentence] does not apply to [the defendant], it demonstrates the unreasonableness of the district court’s sentence.”). We conclude the district court did not abuse its discretion and the sentence imposed was not substantively unreasonable. B. Restitution We next consider Nossan’s challenge to the restitution award. “Because [Nossan] challenges only the applicability of [18 U.S.C. § 3663], not the amount of restitution, we" }, { "docid": "10511788", "title": "", "text": "(5th Cir.1993). . ' The district court cautioned the jury that the evidence was admitted only to prove identity. This Court has previously recognized that such cautionary instructions help to assuage the undue prejudicial effect of extraneous-acts evidence. Beechum, 582 F.2d at 917 & n. 23. . By similar offense, the Court means an offense for which 21 U.S.C. § 841(b)(1)(C) enhances punishment — a separate conviction under paragraph C, a felony conviction under sub-chapters I or II of that chapter, or a conviction under any other state, federal or foreign law relating to narcotics, marijuana, depressants, or stimulants. See 21 U.S.C. § 841(b)(1)(C). . That statute reads: In the case of a controlled substance ... such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $1,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after one or more prior convictions for an offense punishable under this paragraph, or for a felony under any other provision of this subchapter ..., have become final, such person shall be sentenced to a term of imprisonment of not more than 30 years and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment. 21 U.S.C. § 841(b)(1)(C) (emphasis added). . The statutes control over sentencing guideline provisions, so the sentencing guidelines must defer to the statutory punishment range when a conflict arises. Section 5G1.1 explains: (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. (b) Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the" }, { "docid": "10793056", "title": "", "text": "death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury. Burrage, 134 S.Ct. at 892. The Court stated that “the Government concedes that there is no ‘evidence that [the victim] would have lived but for his heroin use.’ ” Id., citing Brief for United States at 33 Burrage v. United States, 134 S.Ct. 881 (2014) (No. 12-7515), 2013 WL 5461835, at *33. The evidence was, therefore, insufficient to support a conviction on Count 2, for distribution of heroin resulting in death. However, the evidence was sufficient to support a conviction on Count 2’s lesser included offense — distribution of heroin. 21 U.S.C. § 841(a)(1); Burrage, 134 S.Ct. at 887 n. 3. This court remands for entry of judgment and resentencing on this offense. See United States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir.1991) (“A reviewing court has the authority to direct the entry of judgment on the lesser includ ed offense when it finds that those elements exclusive to the greater ... offense ... are not supported by sufficient evidence to sustain the jury’s verdict, but that there is sufficient evidence to sustain a finding of guilt on all elements of the lesser offense.”) (internal quotation marks omitted); United States v. Franklin, 728 F.2d 994, 1000-01 (8th Cir.1984). This court rejects Burrage’s challenges to his conviction on Count 1 for the reasons stated in the prior opinion. Burrage, 687 F.3d at 1021-26. At sentencing, the district court increased Burrage’s offense level for both counts based on his conviction under Count 2 for distribution of heroin resulting in death. Accordingly, this court also remands for resentencing on Count 1. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (“Procedural error includes failing to calculate (or improperly calculating) the Guidelines range.”) (internal quotation marks omitted); United States v. Thompson, 690 F.3d 977, 996 (8th Cir.2012) (“Where we reverse one of several of a defendant’s criminal convictions, we remand for resentencing if we are uncertain whether" }, { "docid": "13781426", "title": "", "text": "and naturally resulted from Rodriguez having sold Elliot the heroin. Their actions did not break the chain of legal causation. Therefore, even if there were an intervening cause exception to the enhancement contained in § 841(b)(1)(C) and U.S.S.G. § 2D1.1, which we need not decide here, Rodriguez has adduced no facts entitling him to the benefit of such an exception. III. CONCLUSION For the foregoing reasons, Rodriguez’ sentence is AFFIRMED. . 21 U.S.C. § 841(b)(1)(C) provides that, in the case of a heroin offense, the defendant “shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life.” . Rodriquez also argues that the district court violated his due process rights and right to trial by jury when it enhanced his sentence pursuant to U.S.S.G. § 2D1.1, because \"death or serious bodily injury\" was not established beyond a reasonable doubt. U.S.S.G. § 2D 1.1 (a)(2) sets the base offense level at 38 if the defendant is convicted under 21 U.S.C. § 841(b)(1)(C) \"and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance.\" However, Apprendi does not affect the district court's determinations under the Sentencing Guidelines. United States v. Sanchez, 269 F.3d 1250, 1262 (11th Cir.2001); United States v. Harris, 244 F.3d 828, 830 (11th Cir.2001); United States v. Nealy, 232 F.3d 825, 829 n. 3 (11th Cir.2000). . It is possible that the district court would have sentenced Rodriguez to a term of imprisonment slightly less than 240 months had it not been for the 240-month mandatory minimum for a § 841(b)(1)(C) offense where \"death or serious bodily injury” resulted. However, we need not address this issue, as it was not raised by Rodriguez in his brief on appeal. See, e.g., Marek v. Singletary, 62 F.3d 1295, 1298 n. 2 (11th Cir.1995) (“Issues not clearly raised in the briefs are considered abandoned.”). Moreover, “Apprendi has no application" }, { "docid": "11098313", "title": "", "text": "district court’s finding, by a preponderance of the evidence, that Can-oil’s death resulted from the admitted distribution of morphine and meperidine, we find no clear error. B. Next, Patterson and Laythe argue that the district court erred in not explicitly finding that the Government was required to prove that Carroll’s death was the intended or foreseeable result of their distribution of controlled substances under 21 U.S.C. § 841(b)(1)(C). Specifically, they argue that (1) the statute imposes a “reasonable foreseeability of death” requirement, and (2) the Government failed to provide sufficient evidence to prove that the death of Carroll was, in fact, a reasonably foreseeable consequence of their actions. However, because we find that § 841(b)(1)(C) imposes no reasonable foreseeability requirement, we need not address the question whether Carroll’s death was reasonably foreseeable. Quite simply, the plain language of § 841(b)(1)(C) does not require, nor does it indicate, that prior to applying the enhanced sentence, the district court must find that death resulting from the use of a drug distributed by a defendant was a reasonably foreseeable event. The statute provides: In the case of a controlled substance in schedule I or II ... such person shall be sentenced to a term of imprisonment of not more than 20 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not less than twenty years or more than life.... 21 U.S.C. § 841(b)(1)(C). The statute puts drug dealers and users on clear notice that their sentences will be enhanced if people die from using the drugs they distribute. See Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 976 (4th Cir.1993) (when plain language reveals Congress’ intent, there is no need for further interpretation). Where serious bodily injury or death results from the distribution of certain drugs, Congress has elected to enhance a defendant’s sentence regardless of whether the defendant knew or should have known that death would result. We will not second-guess this unequivocal choice. Appellants argue that we should draw an analogy to recent drug conspiracy cases" }, { "docid": "7912321", "title": "", "text": "fading in and out of consciousness as his roommate walked him to his bedroom. Lane’s roommate found him dead the next morning “hunched over a laundry basket.” The medical examiner concluded Lane died from a central nervous system depression caused by the drugs he had taken. On January 9, 2006, the government filed a one-count information against Rag-land, charging him with distributing heroin resulting in Lane’s death in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On January 10, 2006, a grand jury indicted Rag-land for the same charge. On April 10, 2006, the government moved without resistance to dismiss the criminal information, which the district court granted. When the jury in Ragland’s first trial deadlocked, the district court granted a mistrial. On retrial, the jury convicted Ragland, finding the heroin Ragland distributed “was a contributing factor” in Lane’s death. The district court entered judgment and sentenced Ragland to 240 months imprisonment. Ragland appealed, and we affirmed. See Ragland, 555 F.3d at 708-09. Ragland challenged the sufficiency of the evidence against him, arguing in his brief that “[t]he prosecution had a weak circumstantial case,” but did not explicitly challenge causation as he does on collateral review. See id. at 715. In 2010, Ragland, acting pro se, timely sought relief under 28 U.S.C. § 2255, arguing, among other things, that his counsel was ineffective for failing to assert a statute of limitations defense based on 18 U.S.C. § 3282 and failing to challenge the application of the enhanced penalty provision of 21 U.S.C. § 841(b)(1)(C). Relying in part on then-controlling Eighth Circuit precedent, the district court determined Ragland’s ineffective assistance of counsel claims were without merit and denied Rag-land a certificate of appealability. We granted a certificate of appealability limited to whether “Ragland’s trial counsel was ineffective for failing to raise a statute-of-limitations defense.” Ragland asks that we expand the certificate and remand in light of Burrage. We consider each issue in turn. II. DISCUSSION A. Statute of Limitations Defense Ragland’s ineffective assistance of counsel claim is subject to the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104" }, { "docid": "7912327", "title": "", "text": "not render his performance constitutionally ineffective,” Anderson v. United States, 393 F.3d 749, 754 (8th Cir.2005). “While the Constitution guarantees criminal defendants a competent attorney, it ‘does not insure that defense counsel will recognize and raise every conceivable ... claim.’ ” Id. (quoting Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). Ragland’s counsel’s performance was not constitutionally deficient, and the district court properly denied relief on this claim. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. B. Enhanced Penalty Provision Ragland next asks that we expand the certificate of appealability and remand in light of the Supreme Court’s recent determination that “a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless [the victim’s] use [of drugs distributed by the defendant] is a but-for cause of the death or injury.” Burrage, 571 U.S. at -, 134 S.Ct. at 892. To the extent Ragland argues his trial and appellate counsel were ineffective for failing to challenge then-controlling circuit precedent regarding the enhanced penalty provision of § 841(b)(1)(C), we deny the motion. See Burrage, 571 U.S. at-,-, 134 S.Ct. at 886, 892 (abrogating United States v. Monnier, 412 F.3d 859, 862 (8th Cir.2005), and United States v. McIntosh, 236 F.3d 968, 972-73 (8th Cir.2001)). Our cases make clear that counsel’s failure “to anticipate a change in the law” “does not constitute ineffective assistance.” Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir.1999); accord Brown v. United States, 311 F.3d 875, 878 (8th Cir.2002) (holding “counsel’s decision not to raise an issue unsupported by then-existing precedent did not constitute ineffective assistance”). Thus, Ragland has not “made a substantial showing of the denial of a constitutional right” with respect to such a claim. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). However, Ragland also asserts “the law supporting Mr. Ragland’s conviction pursuant to 21 U.S.C. § 841(b)(1)(C) was overruled,” and he “was convicted ... on proof insufficient to establish but-for causation beyond a reasonable doubt and the jury did not" }, { "docid": "22268132", "title": "", "text": "Guidelines enhancement with § 841(b)(l)(C)’s statutory enhancement when “death or serious bodily injury results from the use” of a controlled substance, which exposes a defendant to a maximum statutory penalty of life imprisonment. The district court’s finding related solely to whether Moss’s relevant conduct, his flight from law enforcement officers, was a sufficient basis to enhance his Guideline sentence and played no part in exposing Moss to the higher statutory sentencing range. A district court may always find relevant conduct under the Guidelines by a preponderance of the evidence because the Guidelines themselves prohibit a sentence in excess of the statutory maximum sentence authorized for the offense of conviction. See USSG §§ 5G1.1, 5G1.2 (2000); see also United States v. Jones, 248 F.3d 671, 677 (7th Cir.2001) (rejecting argument that relevant conduct must be proven to jury beyond a reasonable doubt). Moss is correct, however, in his assertion that the district court’s drug quantity finding increased his sentence beyond the 20-year maximum, thereby resulting in a violation of the rule announced in Appren-di. The government concedes the constitutional violation but argues Moss is not entitled to relief because (1) Apprendi is a new rule of constitutional law inapplicable to cases on collateral review, see Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); and (2) Moss proee-durally defaulted the claim by failing to raise it in his direct appeal. A. In Teague, the Supreme Court held that new constitutional rules of criminal procedure cannot be applied retroactively to cases on collateral review unless they fall within an exception to the general rule. 489 U.S. at 311,109 S.Ct. 1060. The Court recognized two such exceptions. Relevant to our inquiry is the exception permitting watershed rules, ones which “implicate the fundamental fairness of the trial,” to be raised collaterally. Id. at 312, 109 S.Ct. 1060 (internal quotations omitted). In Rodgers v. United States, 229 F.3d 704 (8th Cir.2000) (per curiam), we held that § 2255 forecloses Apprendi claims in a second or successive § 2255 motion because the Supreme Court has not “made” Apprendi retroactive to cases on" }, { "docid": "13781420", "title": "", "text": "death. Specifically, he argues that the intervening acts of the hotel employee and Gann severed the causal connection, because they could have saved Elliot’s life if they had called the paramedics when they saw Elliot unconscious in the hallway rather than placing Elliot on a bed and leaving him alone for approximately one hour. A. Apprendi Rodriguez first argues that his sentence was improperly enhanced because the district court employed a preponderance of the evidence standard, rather than a reasonable doubt standard, in ascertaining whether Elliot’s death resulted from his use of the heroin that Rodriguez admitted selling to him. Because Rodriguez did not raise the issue of the district court’s failure to find “death or serious bodily injury” beyond a reasonable doubt below, we review it only for plain error. See United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir.2001). In Apprendi, the Supreme Court stated that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. at 2362-63. In this case, there is no Apprendi error, because the sentence that Rodriguez received — twenty years — does not exceed the maximum sentence authorized under § 841(b)(1)(C) for a heroin offense without reference to “death or serious bodily injury.” United States v. Sanchez, 269 F.3d 1250, 1268 (11th Cir.2001) (holding that “Apprendi has no effect on cases in which a defendant’s actual sentence falls within the range prescribed by the statute for the' crime of conviction.”) (emphasis in original); United States v. McIntosh, 236 F.3d 968, 976 (8th Cir.2001) (where the district court enhanced the defendant’s sentence under § 841(b)(1)(A) after finding by a preponderance of the evidence that “death or serious bodily injury” had resulted, holding that Apprendi did not apply because the defendant was sentenced to 20 years’ imprisonment, which is the authorized maximum sentence under § 841(b)(1)(C) without any enhancement). Therefore, Rodriguez’ Apprendi claim fails. B. Causal Connection Rodriguez next contends that there was insufficient" }, { "docid": "23078239", "title": "", "text": "in the Immigration and Nationality Act (“INA”) must be resolved by looking at the offense for which the defendant was actually convicted, not the offense for which he could have been convicted in view of his conduct. Powell argues that Carachuri should be applied retroactively as a new substantive rule to invalidate the use of his prior North Carolina conviction, which the district court found was a felony conviction and thus could be used to enhance his 2004 sentence under 21 U.S.C. § 841(b). He explains that Carachuri should be applied in the manner that we applied it in United States v. Simmons, 649 F.3d 237, 243-45 (4th Cir.2011) (en banc) (applying Carachuri to invalidate a sentence enhanced under the Controlled Substance Act based on a prior conviction punished under North Carolina’s structured sentencing scheme). Powell contends that his § 2255 motion is timely based on 28 U.S.C. § 2255(f)(3), which authorizes the filing of a § 2255 motion within one year after the Supreme Court recognizes a new right that has been made retroactively applicable to cases on collateral review. The district court denied Powell’s motion, holding, among other things, that no court had held that Carachuri, applied retroactively to cases on collateral review. For the reasons that follow, we affirm. I Powell pleaded guilty in 2004 to conspiracy to possess with intent to distribute at least 5 kilograms of cocaine and at least 50 grams of crack cocaine, subjecting him to a mandatory minimum sentence of 10 years’ imprisonment and a maximum sentence of life imprisonment. In sentencing Powell, the district court calculated his Guidelines range to be a sentence between 108 and 135 months’ imprisonment. Considering, however, Powell’s 1999 conviction in North Carolina state court for possession of marijuana with intent to distribute and concluding that it was a “felony drug offense” — one that potentially subjected Powell to a sentence exceeding one year— the court enhanced Powell’s sentence to the mandatory minimum term of 20 years’ imprisonment, as provided by 21 U.S.C. § 841(b)(1)(A). While the record shows with respect to Powell’s prior conviction that North" }, { "docid": "7912326", "title": "", "text": "Bur-dix-Dana before joining “the lion’s share of’ courts adopting its approach), Ragland urges us to take a different path. Ragland proposes “the better rule would be that the mere filing of an information is not sufficient to ‘institute’ a proceeding pursuant to 18 U.S.C. § 3282(a).” We need “not be drawn into the debate, however.” Fields, 201 F.3d at 1027. “Given this split of authority at the time [Ragland] was tried, and the complete lack of Eighth Circuit or Supreme Court authority on the subject, it must be said that counsel’s performance fell within ‘the wide range of professionally competent assistance.’ ” Id. at 1027-28 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Even if we assume, without deciding, the indictment itself was untimely and adopt Ragland’s proposed interpretation of 18 U.S.C. §§ 3282 and 3288, Ragland’s “counsel’s failure to anticipate a rule of law that has yet to be articulated by the governing courts,” Fields, 201 F.3d at 1028, and failure to raise a “novel argument” based on admittedly unsettled legal questions “does not render his performance constitutionally ineffective,” Anderson v. United States, 393 F.3d 749, 754 (8th Cir.2005). “While the Constitution guarantees criminal defendants a competent attorney, it ‘does not insure that defense counsel will recognize and raise every conceivable ... claim.’ ” Id. (quoting Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). Ragland’s counsel’s performance was not constitutionally deficient, and the district court properly denied relief on this claim. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. B. Enhanced Penalty Provision Ragland next asks that we expand the certificate of appealability and remand in light of the Supreme Court’s recent determination that “a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless [the victim’s] use [of drugs distributed by the defendant] is a but-for cause of the death or injury.” Burrage, 571 U.S. at -, 134 S.Ct. at 892. To the extent Ragland argues his trial and appellate counsel were ineffective for failing to challenge then-controlling circuit precedent regarding the enhanced penalty provision" }, { "docid": "10793055", "title": "", "text": "rejected Burrage’s proposed jury instruction that the “results from” language in § 841(b)(1)(C) requires a showing of proximate cause. The district court also denied Burrage’s motion for judgment of acquittal, which argued that the death did not “result from” heroin use because there was no evidence that heroin was a but-for cause of death. Burrage appealed. Relying on United States v. Monnier, 412 F.3d 859 (8th Cir.2005), this court held that the district court did not err by using “contributing cause” language to define the statute’s causation element. Burrage, 687 F.3d at 1020-21, citing Monnier, 412 F.3d at 862. As to proximate cause, this court held that Burrage’s proposed instructions “d[id] not correctly state the law” because “a showing of ‘proximate cause’ is not required under § 841(b)(1).” Id. at 1020, quoting United States v. McIntosh, 236 F.3d 968, 972-73 (8th Cir.2001). On certiorari, the Supreme Court reversed Burrage’s conviction on Count 2, holding that at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury. Burrage, 134 S.Ct. at 892. The Court stated that “the Government concedes that there is no ‘evidence that [the victim] would have lived but for his heroin use.’ ” Id., citing Brief for United States at 33 Burrage v. United States, 134 S.Ct. 881 (2014) (No. 12-7515), 2013 WL 5461835, at *33. The evidence was, therefore, insufficient to support a conviction on Count 2, for distribution of heroin resulting in death. However, the evidence was sufficient to support a conviction on Count 2’s lesser included offense — distribution of heroin. 21 U.S.C. § 841(a)(1); Burrage, 134 S.Ct. at 887 n. 3. This court remands for entry of judgment and resentencing on this offense. See United States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir.1991) (“A reviewing court has the authority to direct the entry of judgment on the lesser includ ed offense" } ]

[ { "docid": "16412897", "title": "", "text": "of the SAA precludes a seaman from seeking punitive damages and attorney’s fees from an agent of the United States for its willful and arbitrary denial of maintenance and cure benefits. This issue is apparently one of first impression: the Court is not aware of, and the parties have been unable to cite, any case law applying the exclusivity provision in the context of an arbitrary and willful denial of maintenance and cure benefits. In deciding whether Sea-Land is a suable defendant in this case, the court must reconcile two apparently conflicting federal policies. On one hand, the exclusivity provision deems that the United States shall be the sole defendant in public vessels cases. On the other hand, federal policy favoring maintenance and cure payments requires punitive damages to be awarded when such payments have been willfully and arbitrarily denied. The conflict arises because the United States, the sole defendant in traditional public vessels cases, has not waived its sovereign immunity with regard to punitive damages. To resolve the conflict, the Court will analyze the policies and precedent surrounding both the exclusivity provision and the maintenance and cure remedy. The Exclusivity Provision A seaman who is injured as a result of the negligence of his private employer ordinarily may seek recovery against that employer under the Jones Act, 46 U.S.C. § 688, and under general maritime law. However, the Suits in Admiralty Act [hereinafter “SAA”], 46 U.S.C. §§ 741-52, expressly forecloses such a remedy when the employer acts as an agent of the United States. Section 745 of the SAA states in pertinent part that “where a remedy is provided by [the SAA] it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States.... ” 46 U.S.C. § 745. This “exclusivity provision” precludes recovery against an agent of the United States in any case where he commits a wrongful act on a public vessel or merchant vessel of the United States and a remedy is available against the United States under the SAA. The legislative history" } ]

[ { "docid": "7412713", "title": "", "text": "a seaman who is working aboard a vessel owned by the United States to institute suit against the United States for .injuries sustained thereon. See 46 U.S.C. §§ 742 & 781. Section 745 of the PVA, however, sets certain restrictions upon a seaman’s cause of action. In particular, it states that where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States ... whose act or omission gave rise to the claim. Id. § 745 (emphasis added). In its summary judgement motion, the United States asserts that Manuel, as a matter of law, cannot assert a claim against IMC for any negligence or unseaworthiness because this “exclusivity” provision of § 745 directs that a seaman’s sole recourse is against the United States and not against an agent of the United States who might otherwise be responsible. In this case, it is clear from the facts and exhibits presented that IMC was operating the CAPE FLORIDA as an agent for the United States at which time Manuel was allegedly injured. Furthermore, it is clear that the SAA and PVA provide a remedy for Manuel against the United States for the acts-or omissions giving rise to this claim. The Court agrees with the Report and Recommendation that summary judgment in favor of IMC is appropriate. The exclusivity provision of § 745 bars Manuel’s claim against IMC for negligence and unseaworthiness since IMC was acting as an agent of the United States in operating the CAPE FLORIDA. Therefore, the United States’ motion for summary judgment on behalf of IMC in regards to the original complaint is GRANTED. B. Amending Complaint to Allege IMC’s. Willful Failure to Pay Maintenance and Cure Aso before the magistrate judge for consideration was Manuel’s motion for leave to file an amended and supplemented complaint against the United States and IMC. The proposed complaint would state two causes of action: the first count would encompass those claims for negligence and unseaworthiness considered above; the second count would" }, { "docid": "10445686", "title": "", "text": "of [Sea-Land’s] master or crew in the management of a United States vessel.” Id. at 190. The Shields court also considered the “strong federal policy in favor of maintenance and cure benefits” in allowing the claim to stand. Id. at 191. Likewise important in the Shields court’s decision was the fact that the SAA provides no remedy for willful denial of maintenance and cure. Id. The Henderson court tracked the logic of the Shields decision and allowed the plaintiff seaman to state a cause of action against an agent of the United States for willful failure to pay maintenance and cure. 1990 A.M.C. at 401-02. In doing so, the court stated that the “SAA does not provide a remedy for this claim; therefore, the SAA exclusivity provision does not apply.” Id. at 402. In Farnsworth, though, the same court that decided Henderson ruled that the exclusivity provision barred a suit against an agent of the United States for willful nonpayment of maintenance and cure. 1989 WL 20544, 1989 U.S.Dist. LEXIS 2270 (E.D.La. 1989). The Farnsworth court stated that it was not persuaded by Shields and refused to “give the exclusivity provision the limited construction adopted by the Shields court.” Id. at *5, 1989 U.S.Dist. LEXIS 2270 at *11. It held that “[w]hile plaintiffs maintenance and cure claims may not arise out of the same act or omission as his claims for negligence and unseaworthiness, they certainly are ‘by reason of the same subject matter.’ ” Id. Having reviewed the language of the exclusivity provision of § 745 and the limited case law interpreting that section, the Court agrees with the Farnsworth court that Shields misapplies the exclusivity provision. Likewise, the Court agrees that a proper reading of the statute demonstrates that to be barred, a claim need not arise out of the same act or omission, but need only arise “by reason of the same subject matter.” In the present ease, the non-payment of maintenance and cure issue clearly arose by reason of the same subject matter that gave Fratus a claim against the United States, i.e., the injuries aboard" }, { "docid": "17374060", "title": "", "text": "the default judgment against IMC and granted summary judgment in favor of IMC on the negligence and unseaworthiness claim. However, the district court did not follow the magistrate judge’s recommendation on Manuel’s motion for leave to amend his complaint. In denying the motion to amend, the district court held that the exclusivity provision of the SAA prevents him from bringing a claim for arbitrary and willful denial of maintenance and cure against an agent of the United States. Manuel appeals the district court’s denial of its motion for leave to amend his complaint. He does not appeal the district court’s granting of summary judgment in IMC’s favor on the negligence and unseaworthiness claim. We affirm the district court’s denial of the motion to amend. II. The SAA, 46 U.S.C. §§ 741-752, and the Public Vessels Act (the “PVA”), 46 U.S.C. §§ 781-790, permit admiralty suits to be brought against the United States for causes of action arising out of the operation of vessels owned by or operated for the United States. However, 46 U.S.C. § 745 also provides that: where a remedy is provided by [the SAA] it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States ... whose act or omission gave rise to the claim. 46 U.S.C. § 745. This exclusivity provision precludes recovery against an agent of the United States operating a government-owned vessel on any claim for which the SAA or the PVA provides a remedy against the United States. Only four federal district court judges have considered whether the exclusivity provision in 46 U.S.C. § 745 precludes a seaman’s claim for maintenance and cure against the private operator of a vessel owned by the United States. The first district court to consider the issue held that the seaman, despite the exclusivity provision, could sue the private operator for the arbitrary and willful failure to pay maintenance and cure. Shields v. United States, 662 F.Supp. 187 (M.D.Fla.1987). The district judges who have subsequently considered the issue have not agreed on whether" }, { "docid": "18915393", "title": "", "text": "leaf from Shields and exposed the opinion as one which was both ill conceived and in conflict with congressional intent. 50 F.3d 1253, 1256-58 (4th Cir.1995). After a meticulous review of the legislative history and the jurisprudential background, the court stated: We conclude that Congress intended § 745 to require seamen to sue the United States on any maritime action arising out of an injury on a ship owned by or operated for the government, even if the action arises from the negligence of an agent’s employee. Therefore, we conclude that the exclusivity provision in 46 U.S.C. § 745 was intended to require a seamen injured aboard a government-owned ship to bring his maintenance and cure action against the United States [and not against the private operator of the vessel]. Id. at 1259. The court commented, “Apparently, the Shields court went astray by treating the arbitrary and willful refusal to pay maintenance and cure as a cause of action separate from the simple failure to pay maintenance and cure benefits when due.” Id. Plaintiffs complaint appears to seek compensatory relief and not any punitive damages; this fact simplifies but does not alter the adjudication of this matter. This Court follows Manuel and finds that Count II of the Complaint states a claim against AFS for which a remedy exists against the United States under the Suits in Admiralty Act and Clarification Act. Manuel and Martin both reject the notion that the Suits in Admiralty Act does not incorporate contractual causes of action in suits against the government. This Court believes that the Fourth and Fifth Circuits have adopted the mainstream approach regarding the applicability of the exclusivity clause in suits for wages. Consequently, this Court will follow their lead and reject the reasonings and holdings of Shields and International Marine Carriers. In so doing, this Court hereby dismisses with prejudice Plaintiffs suit against AFS. It must be noted, in closing, that by dismissing Plaintiffs claim against AFS, this Court does not preclude Plaintiff from maintaining an action for wages against the United States. Plaintiff in Count I of the complaint" }, { "docid": "7412714", "title": "", "text": "CAPE FLORIDA as an agent for the United States at which time Manuel was allegedly injured. Furthermore, it is clear that the SAA and PVA provide a remedy for Manuel against the United States for the acts-or omissions giving rise to this claim. The Court agrees with the Report and Recommendation that summary judgment in favor of IMC is appropriate. The exclusivity provision of § 745 bars Manuel’s claim against IMC for negligence and unseaworthiness since IMC was acting as an agent of the United States in operating the CAPE FLORIDA. Therefore, the United States’ motion for summary judgment on behalf of IMC in regards to the original complaint is GRANTED. B. Amending Complaint to Allege IMC’s. Willful Failure to Pay Maintenance and Cure Aso before the magistrate judge for consideration was Manuel’s motion for leave to file an amended and supplemented complaint against the United States and IMC. The proposed complaint would state two causes of action: the first count would encompass those claims for negligence and unseaworthiness considered above; the second count would allege that IMC willfully and arbitrarily refused to pay maintenance and cure to Manuel. As damages for the second count, Manuel seeks payment of the maintenance and cure, punitive damages, costs of this action, and attorney fees. In response to Manuel’s motion for leave the United States, on behalf of IMC, contends that the exclusivity provision of the SAA and PVA bars such an action against 'an agent of the United States. The interpretation of the exclusivity provision is the primary consideration in resolving this issue. Again, the statute provides that where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States ... whose act or omission gave rise to the claim. 46 U.S.C. § 745. The United States contends that this section bars suit against IMC since Manuel has a remedy under the SAA and the claim for willful failure to pay maintenance and cure is “by the reason of the same" }, { "docid": "17374065", "title": "", "text": "Id. at 190. Thus, the Shields court concluded that “the SAA was not designed to preclude recovery for arbitrary claims handling.” Id. The Shields court also reasoned that the language of the exclusivity provision did not prevent a seaman from suing the private operator of a government-owned ship for the arbitrary and willful failure to pay maintenance and cure. By focusing on the “by reason of the same subject matter” language of the exclusivity provision, the Shields court emphasized that the exclusivity provision bars an action against an agent of the United States only if it deals with the same subject matter for which the SAA provides a remedy. The Shields court, however, found that “arbitrary claims handling is an entirely different subject matter from the negligent conduct for which the SAA provides a remedy.” Id. The Shields court thus concluded that a seaman can sue the private operator of a government-owned ship for its arbitrary and willful failure to pay maintenance and cure. III. To support the validity of his proposed claim against IMC for the arbitrary and willful failure to pay maintenance and cure, Manuel relies primarily on Shields. The district court, however, rejected the reasoning of Shields and concluded that the exclusivity provision of 46 U.S.C. § 745 would bar Manuel’s proposed action against IMC. In re viewing the district court’s denial of Manuel’s motion to amend, we too reject the reasoning of Shields and agree that the exclusivity provision would bar Manuel’s claim against IMC. A. We first disagree with the Shields court’s characterization of Congress’s intent in enacting the exclusivity provision. In order to shed some light on Congress’s intent in amending 46 U.S.C. § 745, we undertake to provide an extensive discussion of the Supreme Court decisions that led to the 1950 amendment. In Johnson v. U.S. Shipping Board Emergency Fleet Corp., 280 U.S. 820, 327, 50 S.Ct. 118, 120, 74 L.Ed. 451 (1930), the Supreme Court held that “the remedies given by the [SAA] are exclusive in all cases where a libel might be filed under it.” Although the SAA did not at" }, { "docid": "7412717", "title": "", "text": "Shields v. United States, 662 F.Supp. 187 (M.D.Fla.1987). In Shields, the plaintiff, a seaman -employed aboard a government-owned vessel which was being operated by Sea-Land Corporation, filed suit against Sea-Land for arbitrary failure to pay maintenance and cure which he was due as a result of an injury sustained aboard the vessel.The Shields court denied Sea-Land’s motion to dismiss, which was based upon the exclusivity provision of § 745. In so doing, the court found that non-payment by an insurance department of Sea-Land was.a different “subject matter” from the seaman’s action against the United States for “the wrongful acts of [Sea-Land’s] master or crew in the management of a United States vessel.” Id. at 190. The Shields court also considered the “strong federal policy in favor of maintenance and cure benefits” in allowing the claim to stand.. Id. at 191. Likewise important in the Shields court’s decision was the fact that the SAA provides no remedy for willful denial of maintenance and cure. Id. The Henderson court tracked the logic of the Shields decision and allowed the plaintiff seaman to state a cause of action against an agent of the United States for willful failure to pay maintenance and cure. 1990 A.M.C. at 401-02. In doing so, the court stated that the “SAA does not provide a remedy for this claim; therefore, the SAA exclusivity provision does not apply.” Id. at 402. In Farnsworth, though, the same court that decided Henderson ruled that the exclusivity provision barred a suit against an agent of the United States for willful nonpayment of maintenance and cure. 1989 WL 20544, 1989 U.S.Dist. LEXIS 2270 (E.D.La. 1989). The Farnsworth court stated that it was not persuaded by Shields and refused to “give the exclusivity provision the limited construction adopted by the Shields court.” Id. at *5, 1989 U.S.Dist. LEXIS 2270 at *11. It held that “[w]hile plaintiffs maintenance and cure claims may not arise out of the same act or omission as his claims for negligence and unseaworthiness, they certainly are ‘by reason of the same subject matter.’ ” Id. Having reviewed the language of" }, { "docid": "17374075", "title": "", "text": "of the exclusivity provision does not prevent a seaman from suing the private operator of a government-owned ship for the arbitrary and willful failure to pay maintenance and cure. The SAA allows a seaman to bring an admiralty action against the United States to collect his unpaid maintenance and cure. 46 U.S.C. § 742 (providing that a seaman may bring a cause of action in admiralty against the United States in circumstances where the cause of action could be brought against a private party). The subject matter of this claim under the SAA is the seaman’s entitlement to maintenance and cure resulting from his injury while employed aboard the ship. We find that the seaman’s action against the operator for the arbitrary and willful failure to pay maintenance and cure deals with the same subject matter. Although the claim against the operator highlights the wrongful conduct of the operator’s administrative employees, the action nonetheless arises from the seaman’s entitlement to maintenance and cure resulting from his injury while employed aboard the ship. Section 745 of the SAA therefore precludes the action against the operator and requires the seaman to bring the maintenance and cure action against the United States. 46 U.S.C. § 745. Apparently, the Shields court went astray by treating the arbitrary and willful refusal to pay maintenance and cure as a cause of action separate from the simple failure to pay maintenance and cure benefits when due. There is no cause of action specifically for the arbitrary and willful refusal to pay maintenance and cure. Under general maritime law, a seaman injured while employed aboard a ship is entitled to receive maintenance and cure, and he can bring an admiralty suit to recover any unpaid maintenance and cure benefits. Courts have long awarded punitive damages to seamen where maintenance and cure benefits have been arbitrarily and willfully denied. E.g., Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1118 (5th Cir.1984); Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1051-52 (1st Cir.1973). Punitive damages, however, is merely an additional remedy in the seaman’s maintenance and cure action. The" }, { "docid": "17374061", "title": "", "text": "745 also provides that: where a remedy is provided by [the SAA] it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States ... whose act or omission gave rise to the claim. 46 U.S.C. § 745. This exclusivity provision precludes recovery against an agent of the United States operating a government-owned vessel on any claim for which the SAA or the PVA provides a remedy against the United States. Only four federal district court judges have considered whether the exclusivity provision in 46 U.S.C. § 745 precludes a seaman’s claim for maintenance and cure against the private operator of a vessel owned by the United States. The first district court to consider the issue held that the seaman, despite the exclusivity provision, could sue the private operator for the arbitrary and willful failure to pay maintenance and cure. Shields v. United States, 662 F.Supp. 187 (M.D.Fla.1987). The district judges who have subsequently considered the issue have not agreed on whether to follow Shields. Compare Manuel v. United States, 846 F.Supp. 478 (E.D.Va.1994) (rejecting Shields) and Farnsworth v. Sear-Land Serv., Inc., 1989 WL 20544 (E.D.La. Mar. 7, 1989) (Duplantier, J.) (rejecting Shields) with Henderson v. International Marine Carriers, 1990 A.M.C. 400 (E.D.La.1989) (Feldman, J.) (following Shields). In concluding that the SAA allows a seaman to bring a maintenance and cure action against the private operator, the Shields court relied heavily on the legislative history of the exclusivity provision. As the Shields court explained: The legislative history behind [the exclusivity] provision reveals that its purpose is to protect the rights of seamen. Prior to 1950, seamen seeking to recover for the wrongful acts of agents of the United States faced an area of law which was mired in uncertainty. Many actions against private employers were dismissed, and plaintiff seamen turned to United States as a source of recovery. The seamen often found, however, that their right to sue under the SAA and PVA had become barred by the expiration of the applicable statute of limitations. This situation" }, { "docid": "17374077", "title": "", "text": "Shields court, in effect, turned the punitive damages remedy into a separate cause of action. We conclude that the “by reason of the same subject matter” language of 46 U.S.C. § 745 does not provide a hook to exempt maintenance and cure claims, even ones characterized as “the arbitrary and willful failure to pay maintenance and cure,” from the reach of the exclusivity provision. IV. Having rejected the reasoning of Shields, we conclude that the exclusivity provision of 46 U.S.C. § 745 bars Manuel’s proposed action against IMC for the arbitrary and willful failure to pay maintenance and cure. The SAA provides Manuel with a remedy against the United States to vindicate his entitlement to maintenance and cure. 46 U.S.C. § 742. Because of the exclusivity provision, the remedy provided by the SAA precludes any action against IMC that deals with the same subject matter. 46 U.S.C. § 745. Manuel’s proposed action against IMC, although highlighting IMC wrongful handling of his benefits claim, nonetheless arises from his entitlement to maintenance and cure resulting from his injury while employed aboard a ship. Because the SAA provides a remedy by reason of that subject matter, Manuel cannot bring a maintenance and cure claim against IMC. We recognize that our decision creates the harsh result that Manuel will not be able to recover punitive damages even if he can show that IMC arbitrarily and willfully withheld his maintenance and cure benefits. As a consequence, private operators managing ships owned by the United States can arbitrarily and willfully refuse to pay an injured seaman’s maintenance and cure without suffering any penalty. Nonetheless, the exclusivity provision in 46 U.S.C. § 745 clearly dictates this result. If Congress considers this situation to be unfair, it can correct the problem by carving out a maintenance and cure exception to the exclusivity rule, by waiving the United States’ sovereign immunity with respect to punitive damages in maintenance and cure suits, or by taking some other legislative action. This Court, however, cannot legislate for Congress. We conclude that the district court correctly denied Manuel’s motion for leave to amend" }, { "docid": "10445684", "title": "", "text": "motion, USMM asserts that, as a matter of law, Fratus is barred by the exclusivity provision from asserting a claim against it for the payment of or willful refusal to pay maintenance and cure. The interpretation of the exclusivity provision is the primary consideration in resolving this issue. USMM interprets this section to bar suit against it since Fratus has a remedy under the SAA and the claim for willful failure to pay maintenance and cure is “by the reason of the same subject matter,” namely the injury sustained aboard the vessel. Conversely, Fratus asserts that the refusal of USMM to pay maintenance and cure is a completely different subject matter from the on-board injuries and he suggests that, since the SAA and PVA do not provide for a punitive damages remedy against the United States for willful non-payment, his claim is not barred by § 745. Precedent on this issue in this circuit is non-existent; there is sparse precedent on it from other circuits. In fact, only three district courts have reported addressing this particular issue. See Henderson v. International Marine Carriers, 1990 A.M.C. 400 (E.D.La.1989); Farnsworth v. Sea-Land Serv., Inc., 1989 WL 20544, 1989 U.S. Dist. LEXIS 2270 (E.D.La.1989); Shields v. United States, 662 F.Supp. 187 (M.D.Fla.1987). Among these eases, there is a split in the holdings. Shields and Henderson allowed suit against an agent of the United States for willful non-payment of maintenance and cure; Farnsworth did not. Fratus relies most heavily upon the holding in Shields v. United States, 662 F.Supp. 187 (M.D.Fla.1987). In Shields, the plaintiff, a seaman employed aboard a government-owned vessel which was being operated by Sea-Land Corporation, filed suit against Sea-Land for arbitrary failure to pay maintenance and cure which he was due as a result of an injury sustained aboard the vessel. The Shields court denied Sea-Land’s motion to dismiss, which was based upon the exclusivity provision of § 745. In so doing, the court found that non-payment by an insurance department of Sea-Land was a different “subject matter” from the seaman’s action against the United States for “the wrongful acts" }, { "docid": "17374076", "title": "", "text": "the SAA therefore precludes the action against the operator and requires the seaman to bring the maintenance and cure action against the United States. 46 U.S.C. § 745. Apparently, the Shields court went astray by treating the arbitrary and willful refusal to pay maintenance and cure as a cause of action separate from the simple failure to pay maintenance and cure benefits when due. There is no cause of action specifically for the arbitrary and willful refusal to pay maintenance and cure. Under general maritime law, a seaman injured while employed aboard a ship is entitled to receive maintenance and cure, and he can bring an admiralty suit to recover any unpaid maintenance and cure benefits. Courts have long awarded punitive damages to seamen where maintenance and cure benefits have been arbitrarily and willfully denied. E.g., Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1118 (5th Cir.1984); Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1051-52 (1st Cir.1973). Punitive damages, however, is merely an additional remedy in the seaman’s maintenance and cure action. The Shields court, in effect, turned the punitive damages remedy into a separate cause of action. We conclude that the “by reason of the same subject matter” language of 46 U.S.C. § 745 does not provide a hook to exempt maintenance and cure claims, even ones characterized as “the arbitrary and willful failure to pay maintenance and cure,” from the reach of the exclusivity provision. IV. Having rejected the reasoning of Shields, we conclude that the exclusivity provision of 46 U.S.C. § 745 bars Manuel’s proposed action against IMC for the arbitrary and willful failure to pay maintenance and cure. The SAA provides Manuel with a remedy against the United States to vindicate his entitlement to maintenance and cure. 46 U.S.C. § 742. Because of the exclusivity provision, the remedy provided by the SAA precludes any action against IMC that deals with the same subject matter. 46 U.S.C. § 745. Manuel’s proposed action against IMC, although highlighting IMC wrongful handling of his benefits claim, nonetheless arises from his entitlement to maintenance and cure resulting from his" }, { "docid": "7412715", "title": "", "text": "allege that IMC willfully and arbitrarily refused to pay maintenance and cure to Manuel. As damages for the second count, Manuel seeks payment of the maintenance and cure, punitive damages, costs of this action, and attorney fees. In response to Manuel’s motion for leave the United States, on behalf of IMC, contends that the exclusivity provision of the SAA and PVA bars such an action against 'an agent of the United States. The interpretation of the exclusivity provision is the primary consideration in resolving this issue. Again, the statute provides that where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States ... whose act or omission gave rise to the claim. 46 U.S.C. § 745. The United States contends that this section bars suit against IMC since Manuel has a remedy under the SAA and the claim for willful failure to pay maintenance and cure is “by the reason of the same subject matter,” namely the injury sustained aboard the vessel. Manuel asserts that the refusal of IMC to pay maintenance and cure is a completely different subject matter from the on-board injuries and he suggests that, since the government has not provided a punitive damages remedy under the SAA or PVA for willful non-payment, his claim is not barred .by § 745. Precedent on this issue in this circuit is non-existent; there is sparse precedent on it from other circuits. In fact, only three district courts have reported, addressing this particular issue. See Henderson v. International Marine Carriers, 1990 A.M.C. 400 (E.D.La.1989); Farnsworth v. Sea-Land Serv., Inc., 1989 WL 20544, 1989 U.S. Dist. LEXIS 2270 (E.D.La.1989); Shields v. United States, 662 F.Supp. 187 (M.D.Fla.1987). Among these cases, there is a split in the holdings. Shields and Henderson allowed suit against an agent of the United’ States for willful non-payment of maintenance and cure; Farnsworth did not. In recommending that Manuel be granted leave to file this amended complaint, the magistrate judge relied upon the holding in" }, { "docid": "7412720", "title": "", "text": "it stated that the provision should be broadly construed in order to effectuate the statute’s remedial purpose. Id. at 190. Construing this statute most broadly requires that a seaman be given the right to proceed against a known source, i.e., the United States government. In exchange for the statute’s certainty that the United States will be accountable for his injuries, a seaman sacrifices the right to proceed against the agent of the government who might otherwise be responsible. To hold that IMC is susceptible to suit in this instance would abrogate the clear legislative intent of § 745. Secondly, the Shields decision relies too heavily upon the fact that the SAA does not provides a remedy for willful refusal to pay maintenance and cure. The clear language of the statute makes it irrelevant whether the SAA or PVA provides a remedy for a related claim. It only matters whether the “other action” is “by reason of the same subject matter” as the one for which a remedy is provided. The Court finds that the claim for willful failure to pay maintenance and cure is by reason of the same subject matter (the alleged accident) as the negligence and unseaworthiness claims for which the SAA and PVA provide relief against the United States. Therefore, the Court finds that, under the Foman criteria, it would be futile to allow Manuel to amend his complaint under Rule 15 to state a claim against IMC for willful failure to pay maintenance and cure since the SAA and PVA exclusivity provision bars any such cause of action. Manuel’s motion for leave to amend is DENIED. IV. CONCLUSION The exclusivity provision of 46 U.S.C. § 745 bars a seaman’s claim against an agent of the United States who operates a government-owned vessel. Not only does this bar suit for the agent’s negligence or for the unseaworthiness of the vessel, it likewise prohibits suit against the agent for willful failure to pay maintenance and cure. Therefore, the United State’s motion for summary judgment in favor of IMC is GRANTED. Plaintiff Manuel’s motion for leave to amend and" }, { "docid": "18915391", "title": "", "text": "an agent of the United States in any case where he commits a wrongful act on a public vessel or merchant vessel of the United States and a remedy is available against the United States under the SAA. Id. at 189 (footnote omitted). After conducting a very brief review of the legislative history of § 745, the court concluded that the exclusivity clause did not preclude the plaintiff from maintaining an action against the vessel operator as agent of the United States for arbitrary and willful denial of maintenance and cure benefits. Id. at 190. The court reasoned that no remedy for “arbitrary and willful denial of maintenance and cure benefits” existed under the Suits in Admiralty Act and, therefore, the plaintiff could pursue that remedy against the agent individually. The Shields decision is not controlling in this case. Since Shields was published, other decisions have refuted the position adopted by the Middle District of Florida. Of all the federal decisions on this matter, only one, International Marine Carriers, has chosen to follow Shields in the manner desired by Plaintiff. 1990 A.M.C. at 401-02. Indeed, while the International Marine Carriers Judge (Feldman, J.) in Louisiana’s Eastern District chose to follow Shields, another Judge (Duplantier, J.) in the same district rejected Shields. See Farnsworth v. Sea-Land Serv., Inc., 1989 WL 20544 (E.D.La.1989). Other District Courts considering Shields have rejected it. See Smith v. Mar, Inc., 896 F.Supp. 75 (D.R.I.1995); Fratus v. United States, 859 F.Supp. 991 (E.D.Va.1994); Manuel v. United States, 846 F.Supp. 478 (E.D.Va.1994). This controversy, surprisingly, does not often arise in the District Courts. The Eleventh Circuit has not spoken out on this subject, but other seaboard circuits have. In Martin v. Miller, the Fifth Circuit last month ruled that because the Clarification Act, 50 U.S.C. app. § 1291(a), grants seamen the right to pursue a claim for unpaid wages against the United States, the exclusivity clause bars such a claim against the private operator of the vessel. 65 F.3d 434, 442 (5th Cir.1995). Likewise, in Manuel v. United States, a panel from the Fourth Circuit plucked the fig" }, { "docid": "17374078", "title": "", "text": "injury while employed aboard a ship. Because the SAA provides a remedy by reason of that subject matter, Manuel cannot bring a maintenance and cure claim against IMC. We recognize that our decision creates the harsh result that Manuel will not be able to recover punitive damages even if he can show that IMC arbitrarily and willfully withheld his maintenance and cure benefits. As a consequence, private operators managing ships owned by the United States can arbitrarily and willfully refuse to pay an injured seaman’s maintenance and cure without suffering any penalty. Nonetheless, the exclusivity provision in 46 U.S.C. § 745 clearly dictates this result. If Congress considers this situation to be unfair, it can correct the problem by carving out a maintenance and cure exception to the exclusivity rule, by waiving the United States’ sovereign immunity with respect to punitive damages in maintenance and cure suits, or by taking some other legislative action. This Court, however, cannot legislate for Congress. We conclude that the district court correctly denied Manuel’s motion for leave to amend his complaint to bring an action against IMC for its arbitrary and willful failure to pay maintenance and cure. We affirm the decision of the district court. AFFIRMED. .Neither the SAA nor the PVA create causes of action against the United States. Instead, they act only as a waiver of the sovereign immunity of the United States in admiralty cases. The acts merely provide the jurisdictional hook upon which to hang a traditional admiralty claim. Williams v. Central Gulf Lines, 874 F.2d 1058, 1059 (5th Cir.1989); Blanco v. United States, 775 F.2d 53, 63 n. 8 (2d Cir.1985). . Remedies provided by the PVA are also subject to the exclusivity provision of the SAA. 46 U.S.C. § 782. . The Eastern District of Virginia has also rejected Shields in Fratus v. United States, 859 F.Supp. 991 (E.D.Va.1994). Fratus and Manuel were written by the same district judge and were issued on the same day. The discussion of Shields in the two opinions is nearly identical. . The Supreme Court’s opinion in Johnson resolved four separate" }, { "docid": "10445682", "title": "", "text": "F.Supp. 187 (M.D.Fla.1987) and Magistrate Judge Miller’s Report and Recommendation in Manuel v. United States, Civ. Action No. 2:93cv306 (E.D.Va. Feb. 3, 1994). II. STANDARD FOR DISMISSAL In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the complaint is construed-in the light most favorable to the plaintiff and his allegations are taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Bruce v. Riddle, 631 F.2d 272, 273-74 (4th Cir.1980). A court should not dismiss a complaint even if it appears on the face of the pleadings that the chance of recovery is very remote. Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. III. ANALYSIS In Count IV of his complaint, Fratus asserts claims for maintenance and cure, punitive damages, attorney’s fees, and costs against USMM for its willful and arbitrary refusal to pay maintenance and cure. USMM contends that the “exclusivity” provision of 46 U.S.C.App. § 745 prohibits suit against an agent of the United States who is operating a government-owned vessel. In enacting the SAA and PVA, Congress expressly waived the United States’ sovereign immunity and provided seamen who are injured aboard a vessel of the United States with a cause of action against the United States, even if the vessel is operated by a private entity, such as USMM. See 46 U.S.C.App. §§ 742 & 781. Section 745 of the PVA, however, sets certain restrictions upon a seaman’s cause of action. In particular, it states that where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States ... whose act or omission gave rise to the claim. Id. § 745. In its" }, { "docid": "7412716", "title": "", "text": "subject matter,” namely the injury sustained aboard the vessel. Manuel asserts that the refusal of IMC to pay maintenance and cure is a completely different subject matter from the on-board injuries and he suggests that, since the government has not provided a punitive damages remedy under the SAA or PVA for willful non-payment, his claim is not barred .by § 745. Precedent on this issue in this circuit is non-existent; there is sparse precedent on it from other circuits. In fact, only three district courts have reported, addressing this particular issue. See Henderson v. International Marine Carriers, 1990 A.M.C. 400 (E.D.La.1989); Farnsworth v. Sea-Land Serv., Inc., 1989 WL 20544, 1989 U.S. Dist. LEXIS 2270 (E.D.La.1989); Shields v. United States, 662 F.Supp. 187 (M.D.Fla.1987). Among these cases, there is a split in the holdings. Shields and Henderson allowed suit against an agent of the United’ States for willful non-payment of maintenance and cure; Farnsworth did not. In recommending that Manuel be granted leave to file this amended complaint, the magistrate judge relied upon the holding in Shields v. United States, 662 F.Supp. 187 (M.D.Fla.1987). In Shields, the plaintiff, a seaman -employed aboard a government-owned vessel which was being operated by Sea-Land Corporation, filed suit against Sea-Land for arbitrary failure to pay maintenance and cure which he was due as a result of an injury sustained aboard the vessel.The Shields court denied Sea-Land’s motion to dismiss, which was based upon the exclusivity provision of § 745. In so doing, the court found that non-payment by an insurance department of Sea-Land was.a different “subject matter” from the seaman’s action against the United States for “the wrongful acts of [Sea-Land’s] master or crew in the management of a United States vessel.” Id. at 190. The Shields court also considered the “strong federal policy in favor of maintenance and cure benefits” in allowing the claim to stand.. Id. at 191. Likewise important in the Shields court’s decision was the fact that the SAA provides no remedy for willful denial of maintenance and cure. Id. The Henderson court tracked the logic of the Shields decision and" }, { "docid": "18915390", "title": "", "text": "the United States, Plaintiff has sued the private party which operated the vessel for the United States. The relevant section of the Suits in Admiralty Act includes this clause: “[W]here a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States.” 46 U.S.C. app. § 745. Recent case law, infra, demonstrates that Plaintiffs cause of action against the private party must be dismissed because there is an available remedy against the United States. Plaintiff argues that the remedy it seeks against AFS is based in contract, not in tort, and therefore does not fall within the Suits in Admiralty Act. The sole case Plaintiff relies upon is Henderson v. International Marine Carriers, 1990 A.M.C. 400 (E.D.La.1989). International Marine Carriers adopted the controversial and rarely followed stance of Shields v. United States, 662 F.Supp. 187 (M.D.Fla.1987). The Shields court restated the general recitation regarding the exclusivity clause: 46 U.S.C. § 745 ... precludes recovery against an agent of the United States in any case where he commits a wrongful act on a public vessel or merchant vessel of the United States and a remedy is available against the United States under the SAA. Id. at 189 (footnote omitted). After conducting a very brief review of the legislative history of § 745, the court concluded that the exclusivity clause did not preclude the plaintiff from maintaining an action against the vessel operator as agent of the United States for arbitrary and willful denial of maintenance and cure benefits. Id. at 190. The court reasoned that no remedy for “arbitrary and willful denial of maintenance and cure benefits” existed under the Suits in Admiralty Act and, therefore, the plaintiff could pursue that remedy against the agent individually. The Shields decision is not controlling in this case. Since Shields was published, other decisions have refuted the position adopted by the Middle District of Florida. Of all the federal decisions on this matter, only one, International Marine Carriers, has chosen to follow Shields in" }, { "docid": "10445683", "title": "", "text": "asserts claims for maintenance and cure, punitive damages, attorney’s fees, and costs against USMM for its willful and arbitrary refusal to pay maintenance and cure. USMM contends that the “exclusivity” provision of 46 U.S.C.App. § 745 prohibits suit against an agent of the United States who is operating a government-owned vessel. In enacting the SAA and PVA, Congress expressly waived the United States’ sovereign immunity and provided seamen who are injured aboard a vessel of the United States with a cause of action against the United States, even if the vessel is operated by a private entity, such as USMM. See 46 U.S.C.App. §§ 742 & 781. Section 745 of the PVA, however, sets certain restrictions upon a seaman’s cause of action. In particular, it states that where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States ... whose act or omission gave rise to the claim. Id. § 745. In its motion, USMM asserts that, as a matter of law, Fratus is barred by the exclusivity provision from asserting a claim against it for the payment of or willful refusal to pay maintenance and cure. The interpretation of the exclusivity provision is the primary consideration in resolving this issue. USMM interprets this section to bar suit against it since Fratus has a remedy under the SAA and the claim for willful failure to pay maintenance and cure is “by the reason of the same subject matter,” namely the injury sustained aboard the vessel. Conversely, Fratus asserts that the refusal of USMM to pay maintenance and cure is a completely different subject matter from the on-board injuries and he suggests that, since the SAA and PVA do not provide for a punitive damages remedy against the United States for willful non-payment, his claim is not barred by § 745. Precedent on this issue in this circuit is non-existent; there is sparse precedent on it from other circuits. In fact, only three district courts have reported addressing this" } ]

[ { "docid": "22657509", "title": "", "text": "satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. This construction gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the “substantial showing” standard provided in Barefoot, supra, at 893, and n. 4, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Determining whether a COA should issue where the petition was dismissed on procedural grounds has two compo nents, one directed at the underlying constitutional claims and one directed at the district court’s procedural holding. Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. The recognition that the “Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of,” Ashwander" } ]

[ { "docid": "18491601", "title": "", "text": "or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court’s decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision constitutes an unreasonable application of clearly established federal law if it is “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. Further, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001). Additionally, under AEDPA, a petitioner must obtain a Certificate of Appealability (COA) before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s" }, { "docid": "2983002", "title": "", "text": "inquiry, the Supreme Court’s endorsement of the FBI warnings that did not expressly state there is a right to counsel during interrogation, and the circuit split regarding whether Miranda requires explicitly informing the suspect that he has the right to counsel during interrogation, we hold that the Court of Criminal Appeals’s conclusion that the warnings adequately conveyed the right to counsel during interrogation was not objectively unreasonable. Therefore, we affirm the district court’s denial of relief with respect to Bridgers’s Fifth Amendment claim. B. Fourth Amendment 1. COA Standard of Review The district court denied a COA with respect to Bridgers’s Fourth Amendment claim. Under AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. at 1034. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "11755177", "title": "", "text": "to the procedures imposed by the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. See 28 U.S.C.A. § 2253(c)(2) (West 2003); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). “[W]hen a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West 2003). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will riot prevail.” Id. at 338, 123 S.Ct. 1029. Finally, “[bjecause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [Petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We note that under the AEDPA, federal courts are to give a level of deference to state court findings per §§ 2254(d)(2) and (e)(1). At the" }, { "docid": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "18025546", "title": "", "text": "sentence. Accordingly, the trial court sentenced Trottie to death. The Texas Court of Criminal Appeals affirmed Trottie’s conviction and sentence. Trottie v. State, No. 71,693 (Tex.Crim.App. Sept. 20, 1995). Trottie filed a petition for writ of habeas corpus in the state court in 1997. In 2008, the trial court submitted findings of fact and conclusions of law recommending a denial of habeas relief, which the Texas Court of Criminal Appeals adopted in 2009. Ex Parte Trottie, No. 70,302-01 (Tex.Crim.App. Feb. 11, 2009). Trottie then sought federal habeas relief, which the district court denied in 2011. See Trottie, 2011 WL 4591975, at *1, 20. Trottie now seeks a COA. STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Trottie’s habeas petition. Under AEDPA, a state court prisoner must obtain a certificate of appealability (“COA”) before he can appeal a federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is warranted upon a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). A petitioner satisfies this standard if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336,123 S.Ct. 1029. In cases involving the death penalty, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). We evaluate the debatability of Trottie’s constitutional claims under AED-PA’s highly deferential standard, which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations" }, { "docid": "9579645", "title": "", "text": "of the Confrontation Clause.”) (citations omitted). Accordingly, the petition for habeas relief based on a Sixth Amendment violation is denied. D. As to a Certificate of Appealability Rule 22(b) of the Federal Rules of Appellate Procedure provides that “[i]n a ha-beas corpus proceeding in which the detention complained of arises from process issued by a state court ... the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).” Section 2253(c) provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing” does not require that a petitioner demonstrate that he would prevail on the merits in his appeal, but only that the issues he raises are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000). In the Court’s view, the petitioner has satisfied his burden for a certificate of appealability with regard to the issue of whether New York’s depraved indifference murder statute is unconstitutionally vague. This question is debatable among jurists of reason, as evidenced by the dissents of former Court of Appeals Judges Jasen, Bellacosa, and Rosenblatt, and the opinions of Judge Brieant in the Southern District of New York. Also, the question is one which should receive further review. The Second Circuit has not yet addressed whether New York’s depraved indifference murder statute, on its face or as interpreted, violates the Constitution. On two occasions, the Court found that the question was not properly exhausted and procedurally barred, and the petitioners failed to show either “cause and prejudice” or that they were actually innocent. See St. Helen v. Senkowski" }, { "docid": "1635855", "title": "", "text": "were affirmed on direct appeal by the Texas Court of Criminal Appeals (CCA). Ward v. State, No. AP-75750, 2010 WL 454980, at *1 (Tex. Crim.App. Feb. 10, 2010). While his direct appeal was pending, Ward sought state habeas relief. The state trial court issued a report and findings recommending denial of habeas relief without an evidentiary hearing. Ex parte Ward, No. WR-70651-02, 2010 WL 3910075, at *1 (Tex.Crim. App. Oct. 6, 2010). The CCA adopted the trial,-judge’s findings and conclusions in part, and denied Ward’s habeas petition in an unpublished decision. Id. One year later, Ward filed the instant federal habeas corpus petition in federal district court. Ward asserted five federal claims for habeas relief. The district court denied his petition in its entirety and denied his request for a certificate of appeal-ability. Ward now seeks our permission to appeal three of the five claims that the district court rejected. II. JURISDICTION AND STANDARD OF REVIEW To appeal the district court’s denial of his habeas petition, Ward must first obtain a COA pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court did not grant a COA on any of Ward’s claims, we have jurisdiction at this juncture only to consider whether a COA should issue, and not the ultimate merits of his claims. E.g., 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029. A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists. could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Specifically, “the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Feldman v. Thaler, 695 F.3d 372, 377 (5th Cir.2012) (alteration omitted) (quoting Slack v. McDaniel, 529 U.S." }, { "docid": "7585282", "title": "", "text": "of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El I, 537 U.S. at 336-37, 123 S.Ct. 1029. In sum, Petitioner need not show that his habeas petition will ultimately prevail on the merits in order for this court to issue a COA. Id. at 337, 123 S.Ct. 1029. In fact, the Supreme Court has specifically instructed that a court of appeals should not deny a COA simply because the petitioner has not demonstrated an entitlement to relief. Id. Instead, “ ‘where a district court has rejected the constitutional claims on the merits, the showing required to" }, { "docid": "11683530", "title": "", "text": "This case arises on appeal from the United States District Court for the Southern District of Texas, Houston Division, Judge Ewing Werlein, Jr. presiding. The State moved for summary judgment. On March 31, 2003, the district court granted the State’s motion for summary judgment denying Smith relief without an evidentiary hearing and dismissed the writ petition in an unpublished decision. Smith v. Cockrell, No. H-00-1771 (S.D.Tex. filed March 31, 2003). The district court also denied Smith’s COA request sua sponte. On September 22, 2003, Smith timely filed his appeal, requesting a COA from this court. Standard of review Because Smith’s federal petition for habeas review was filed on May 30, 2000, we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. To obtain a COA, the petitioner must make a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, the petitioner must demonstrate “that reasonable jurists could debate whether [] the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). In determining whether to grant a COA, our inquiry is limited to a threshold examination that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A full consideration of the merits is not required, nor permitted, by § 2253(c)(2). Id. The fact that a COA should issue does not mean the petitioner will be entitled to ultimate relief, rather “the question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. Accordingly, we must be mindful that “a claim can be debatable even though every jurist of reason might agree, after the COA" }, { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "13139588", "title": "", "text": "only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability. The jury found Wright guilty, and he was sentenced to death. Wright’s conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals (“TCCA”). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State’s proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court’s findings of fact and conclusions of law and denied relief. Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright’s claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge’s recommendation and denied the petition. II We issue a certificate of appealability only when the movant has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). This requires him to “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id. The movant’s arguments “must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1).” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)’s deferential standard of review when ruling on motion for COA). A federal court may not issue a" }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "18491602", "title": "", "text": "denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). As the Supreme Court has explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of them merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable among jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citation omitted). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the ease has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]eeause the present case involves the death penalty, any doubts as to whether a COA should issue must be resolved in [petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). III. SUPPRESSION OF EVIDENCE Avila contends that the State failed to disclose certain evidence in viola tion of his due process rights. The district court granted a COA as to this issue. The State has a duty to disclose evidence favorable to the accused that is material to guilt" } ]

[ { "docid": "22750078", "title": "", "text": "officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Brown v. Illinois, 422 U. S., at 610-611 (Powell, J., concurring in part); see Illinois v. Gates, supra, at 263-264 (White, J., concurring in judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i. e., in failing to particularize the place to be searched or the things to be seized— that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v. Sheppard, post, at 988-991. In so limiting the suppression remedy, we leave untouched the probable-cause standard and the various requirements for a valid warrant. Other objections to the modification of the Fourth Amendment exclusionary rule we consider to be insubstantial. The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time. Nor are we persuaded that application of a good-faith exception to searches conducted pursuant to warrants will preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state. There is no need for courts to adopt the inflexible practice of always deciding whether the officers’ conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated. Defendants seeking suppression of the fruits of allegedly unconstitutional searches or seizures undoubtedly raise live controversies which Art. Ill empowers federal courts to adjudicate. As cases addressing questions of good-faith immunity under 42 U. S. C." } ]

[ { "docid": "3882620", "title": "", "text": "by a lawful entry, there is no violation. We look first, then, at whether the entry by the officers who were in fact looking for the items listed in the warrant was lawful. We need not consider, in this case, whether the search warrant was valid, as the jury specifically found that all of the officers acted in the good-faith belief that the warrant was valid. Under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), this good-faith belief renders lawful the presence of the officers who entered under authority of the warrant and were searching for items listed therein. We next inquire whether the officers who were not looking for items in the warrant enlarged, by their presence and their activities, the extent of the intrusiveness. In other words, we must heed the warning of United States v. Brand that “the later officials must confine their intrusion to the scope of the original invasion....” 556 F.2d at 1317 n. 9. This matter was addressed by the jury, which specifically found that no officer searched in places where it would be unreasonable to find the items described m the warrant. Thus, the intrusion, for fourth-amendment purposes, was the same as it would have been if no officer had been present who was not looking only for items listed in the warrant. In other words, the search of Mr. Crowder’s premises — and any consequent invasion of privacy — at no point exceeded the search that was authorized by the warrant, as no officer went beyond the intrusion which the warrant countenanced. It follows that under Green, Brand, Roberts, and Vance the presence and participation of additional officers — even those present to investigate other crimes or to provide expert guidance — does not render unlawful an intrusion by other officers who are properly on the scene. The facts here are perhaps closest to those in Green, where the fire marshal, lawfully on the scene, uncovered items that arguably were instrumentalities of crime. He called “a federal officer, who is expert in identifying the type of" }, { "docid": "1446367", "title": "", "text": "instrumentalities and evidence (at this time unknown) of these crimes which facts recited in the accompanying affidavit make out.” This phrase followed a lengthy list of specific items to be seized, and the warrant was supported by a detailed twenty-five page affidavit which provided context for the challenged phrase. In reviewing Frederickson’s argument, we are well aware of the problem posed by general warrants, which “is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). We also pause to reiterate the Supreme Court’s warning that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.... In [this] kind[] of search[], responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy. Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749 n. 11, 49 L.Ed.2d 627 (1976). The fourth amendment requires that a search warrant’s description of the evidence to be seized be “sufficiently definite so as to enable the officer with the warrant to reasonably ascertain and identify the place to be searched and the objects to be seized.” United States v. Muckenthaler, 584 F.2d 240, 245 (8th Cir.1978); see also United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir.1976). As a result, “the degree of specificity required is flexible and may vary depending on the circumstances and the type of items involved.” Muckenthaler, 584 F.2d at 245. For example, where the warrant authorizes seizure of materials protected by the first amendment, “the requirements of the Fourth Amendment must be applied with ‘scrupulous exactitude.’ ” Zurcher v. Stanford" }, { "docid": "9807256", "title": "", "text": "to be in the cabin. They rely on a sentence, taken out of context, from Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The issue in Coolidge was whether items in plain view could be seized without a warrant. In the course of its discussion the plurality opinion stated: If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of “Warrants .. . particularly describing ... [the] things to be seized.” 403 U.S. at 471, 91 S.Ct. at 2040. This was said to substantiate the plurality’s conclusion that the plain view exception to the warrant rule had to be qualified by a requirement that the discovery of the items be inadvertent. The plurality was concerned that officers would know exactly where an item was to be found, proceed to the location, and without a warrant seize the item, claiming that it was in plain view. This concern is not relevant to a situation in which a search was made pursuant to a reasonably specific warrant adequately describing in general terms what the officers knew was in the residence. Coolidge did not hold that all warrants must list in specific detail every item that agents know is likely to be found in a certain location. It does not change the traditional standard of reasonable specificity. Here, it is apparent that a canister of methylamine is included within the scope of the warrant as “chemicals ... commonly utilized in the manufacture of methamphetamine.” Moreover, even if it were the law that the warrant had to refer specifically to the canister, the affidavit, which supported the warrant and was incorporated into it, described the canister, its travels, and its location in the cabin. When a warrant incorporates an affidavit and the affidavit specifically lists the items expected to be found, the warrant and affidavit together satisfy the specificity requirement. United States v. Marques, 600 F.2d 742, 752 (9th Cir. 1979)," }, { "docid": "9807255", "title": "", "text": "444 F.Supp. at 149-50 (quoted with approval in United States v. Allen, 633 F.2d at 1289 n.5). 6. Warrant to Search Meacham Cabin Appellants next attack the search warrant issued March 31 insisting that it is invalid for lack of particularity and probable cause. We shall address each of these contentions. A. Particularity The warrant authorized a search for “chemicals and glassware commonly utilized in the manufacture of methamphetamine, and other narcotic paraphernalia, including notes, instructions, formulas, .... ” This warrant is undoubtedly specific enough to satisfy the general requirement that, to be valid, a warrant must be reasonably specific, rather than elaborately detailed, in its description of the objects of the search. See, e.g., Andresen v. Maryland, 427 U.S. 463, 479-82, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976) (warrant upheld for the seizure of “other fruits, instrumentalities and evidence of crime at this [time] unknown.”) Despite the warrant’s reasonable specificity, appellants object, however, to the failure of the warrant specifically to mention the canister of methylamine, which, from the beeper monitoring, was known to be in the cabin. They rely on a sentence, taken out of context, from Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The issue in Coolidge was whether items in plain view could be seized without a warrant. In the course of its discussion the plurality opinion stated: If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of “Warrants .. . particularly describing ... [the] things to be seized.” 403 U.S. at 471, 91 S.Ct. at 2040. This was said to substantiate the plurality’s conclusion that the plain view exception to the warrant rule had to be qualified by a requirement that the discovery of the items be inadvertent. The plurality was concerned that officers would know exactly where an item was to be found, proceed to the location, and without a warrant seize the item, claiming that it was" }, { "docid": "3882624", "title": "", "text": "of the discovered item, if that expertise can be close at hand in the form of other law enforcement officers. We note, as well, that the case for defendants is made even stronger here by the fact that all of the officers were engaged in the investigation of a related series of burglaries. If the entry in, e.g., Roberts, of an officer from a different jurisdiction to view evidence of a totally unrelated crime (entry to find television set, federal officers called when gambling paraphernalia located) is justified without an additional warrant, then surely the presence of additional officers who are investigating related burglaries has no constitutional ramifications. 3. Thus, as we have established, no fourth amendment violation was occasioned merely by the presence and participation of the officers who were not present primarily for the purpose of looking for items described in the warrant. We note, however, that the entry onto the premises and the opening of drawers and the like in search of the listed items is not the only “search” that arguably occurred for purposes of our fourth amendment inquiry in this case. There is ample evidence in the record that numerous items not listed in the warrant but seized from the premises were handled, physically examined, and moved about the premises in the process of the officers’ determining whether the respective items had been stolen. In Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the Court held that although officers are lawfully on a premises to search for certain items, a separate and additional “search” occurs when they come across other items and move or handle them in such a way as to reveal materially identifying characteristics. Id. 480 U.S. at 324-25, 107 S.Ct. at 1152-53. [Tjaking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry_ [T]he distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a" }, { "docid": "14271399", "title": "", "text": "an additional sack was found several days later during a search of the Buiek’s trunk. It is the marijuana in these eight sacks which was the subject of the motion to suppress. Whether the court committed error in denying the motion turns, as we shall explain, on the validity of the arrests and we proceed to a consideration of that issue. I. It is important to note at this point that we are not concerned with a search of any sort. We are concerned only with the accepted rule that contraband in plain view may be seized, even though it is on private property, so long as the initial intrusion on to the property is legitimate by virtue of a warrant or an exception to the warrant requirement, at least in circumstances where a warrant for the contraband itself could not have been previously obtained. See Coolidge v. New Hampshire, 1971, 403 U.S. 443, 464-471, 91 S.Ct. 2022, 2037-2040, 29 L.Ed.2d 564, 581-586. Since it is clear that there was no time prior to entry to obtain a warrant, we need deal only with whether the initial warrant-less intrusion was legal. If it was, the combination of the odor of marijuana and the nature of the plainly visible sacks was sufficient to support seizure of the bags as containing contraband. As one justification for the agents’ presence on Kopp’s premises, the government contends that they entered merely to inquire of the defendants whether a marijuana transaction was in progress. The general idea is to analogize their entry to the approach of the officers, without probable cause, in Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Adams v. Williams, 1972, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. However, classifying this entry as a so-called investigative approach strains the facts, inasmuch as it was accomplished by a sudden raid by seven officers. Thus, we pretermit this approach as justification for the officers’ presence on the property. Rather, we proceed on the theory that the raid constituted an arrest, that the contents of the plainly" }, { "docid": "3882613", "title": "", "text": "Arkansas State Police Investigator Charles Lambert. Charles Lambert did not read or know the content of the warrant. His primary task at the scene of the search was to guard one of the burglary suspects in a hallway outside Crowder’s office. At one point, he looked into one of the file drawers out of curiosity and saw a number of gold and silver bars; he did not look into any other drawers or engage in any other activities related to the search. 2. The jury specifically found that the officers searched only in those places where it would be reasonable to find the items described in the search warrant, and that the officers had the reasonable and good-faith belief that the warrant was valid. The question, then, is whether Sinyard, Phillips, Godwin, Jones, and Charles Lambert, who admittedly were not present to search for the six items listed in the warrant, violated the fourth amendment by being present and, in the case of some of them, comparing items found by the other officers with lists of items thought to have been taken in related burglaries. We have held repeatedly that similar actions by “outside,” or additional, officers does not violate the fourth amendment where there has been an initial, lawful intrusion. For example, in United States v. Green, 474 F.2d 1385 (5th Cir.), cert. denied, 414 U.S. 829, 94 S.Ct. 55, 38 L.Ed.2d 63 (1973), a local fire marshal was lawfully present at a burned premises to investigate the origin of a fire that had just been suppressed. Sifting through the rubble, he located metal plates that appeared to have been designed for counterfeiting. He called a United States Secret Service agent who, without seeking a warrant, came to the premises and seized the plates. We held that no fourth amendment violation occurred. We first determined that “[t]he activity that led to the discovery of the plates was within the scope of the justification for the fire marshal’s intru sion” and that he was not required to stop his investigation to obtain a warrant once the plates were discovered. Id." }, { "docid": "3882618", "title": "", "text": "95 S.Ct. 320, 42 L.Ed.2d 277. Later arrivals may join their colleagues even though the exigent circumstances justifying the initial entry no longer exist. Id. Thus, the validity of the affidavit is not vitiated by the late entry of the affiant and the other policemen. Id. at 1317-18. To the same effect, in United States v. Roberts, 619 F.2d 379 (5th Cir.1980), local deputy sheriffs entered an apartment pursuant to a warrant authorizing them to search for a television set. While there, they observed possible gambling paraphernalia and called the Federal Bureau of Investigation. Federal agents arrived and joined the local officers in seizing the gambling-related items. In an opinion by Judge Rubin, the court upheld the denial of a motion to suppress. Citing, inter alia, United States v. Green, the court held that the decision to await arrival of the federal officers, to assist in identifying the contraband before seizing it, “does not affect the validity of the seizure.” Id. at 381. Finally, in Vance v. United States, 676 F.2d 183, 189 (5th Cir.1982), we summarized the import of these cases in an opinion by Judge Politz: The common thread in Green, Brand, and Roberts is two-pronged: the law enforcement officer initially entering the protected area was justified in doing so, and, while there, he observed items of an obviously illegal character. In such an instance, the officer could appropriately share the information with other law enforcement personnel bearing particular responsibility in that field. In those instances, warrants were not necessary to authorize the conduct of the later arriving officers. We noted, as well, that the “plain view doctrine is limited to ‘inadvertent discoveries of evidence by police officers acting within the scope of an otherwise justified intrusion.’ [Roberts,] 619 F.2d at 381 (quoting Coolidge v. New Hampshire, 403 U.S. [443, 469, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 (1971) (plurality opinion) ]).” These cases inform us that we look to the element of intrusiveness to determine whether the presence of additional officers violates the fourth amendment: If their presence effects no intrusion other than that which is implicated" }, { "docid": "1227421", "title": "", "text": "on the premises, the items they saw fall within the “plain view” doctrine, and as such were subject to warrantless seizure. Although the objects were not immediately seized, but were seized after the invalid search warrant was obtained, the government maintains the validity of the seizure of the stolen objects observed in plain view is not negated. Disposition of the issue presented requires clarification of what this court perceives as the issue which must actually be addressed. Whether the objects at issue were subject to warrantless seizure is solely a Fourth Amendment question. If it is determined that under the proscriptions of the Fourth Amendment the objects were subject to a warrantless seizure, the fact that the search warrant obtained was invalid under Rule 41(a) of the Federal Rules of Criminal Procedure is irrelevant. Rule 41(a) comes into play only if a warrant was required for the seizure to be legitimate. The “plain view” doctrine as espoused in Coolidge v. New Hampshire, 408 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970), sets forth the circumstances under which an immediate warrantless seizure of objects observed by law enforcement officers, after a legitimate intrusion into activities or areas as to which there is a reasonable expectation of privacy, is justified. The “plain view” doctrine is applicable when the evidence was discovered inadvertently, the incriminating nature of the evidence was immediately apparent, and exigent circumstances existed. Id. at 464-473, 91 S.Ct. at 2037-2042. It is noted in this regard that the Supreme Court in Coolidge specifically recognized that the inadvertency requirement does not apply to stolen objects. 403 U.S. at 464-473, 91 S.Ct. at 2037-2042. Critical to the application of the “plain view” doctrine is that the initial intrusion must be justified. Id. at 467, 91 S.Ct. at 2038. However, the plain view doctrine does not require that an officer’s presence at a vantage point from which he observes evidence must be justified by warrant to search or by “hot pursuit” or the search incident to arrest rationale; rather, a legitimate reason for the officer’s presence unconnected with a search against a" }, { "docid": "15106910", "title": "", "text": "recent exposition by the Supreme Court of the “plain view” exception can be found in the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There, two prerequisites to the availability of the exception were prescribed. First, the officer’s presence at the vantage point from which he discovers the evidence in plain view must not amount to an unjustifiable intrusion into an area with respect to which defendant's expectations of privacy are protected by the fourth amendment. That is, the officer must not have entered defendant’s zone of privacy, or, if he has, such entry must have been justified by “a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused.” 403 U.S. at 466, 91 S.Ct. at 2038. Secondly, the discovery of the evidence in plain view must have been inadvertent. The rationale underlying this exception is that the abuses which the fourth amendment warrant requirement is designed to prevent are satisfactorily dealt with by the requirement that the original intrusion be constitutionally justifiable. In consequence, it would be needlessly inconvenient, and sometimes perhaps a danger to the police or to the evidence, to require the police to ignore evidence in plain view until they have obtained a warrant particularly describing it. 403 U.S. at 467-468, 91 S.Ct. 2022. Turning now to the application of these principles to the facts of the instant appeal, we conclude that the agents entered an area with respect to which the defendant had a reasonable expectation of privacy protected by the. fourth amendment when they came onto his premises. However, the agents had a legitimate reason for this incursion unconnected with a search of such premises directed against the accused. They were clearly entitled to go onto defendant’s premises in order to question him concerning the abandoned vehicle near his property. Furthermore, we cannot say that Agent Williams exceeded the scope of his legitimate purpose for being there by walking around to the back door when he was" }, { "docid": "23557078", "title": "", "text": "the case of a redacted warrant. Plain view only justifies the warrantless seizure of evidence because “by hypothesis the seizure of an [incriminating] object in plain view does not involve an intrusion on privacy.” Horton, 496 U.S. at 141, 110 S.Ct. at 2310. The doctrine may not be used to extend a general exploratory search from one object to another until an incriminating item turns up. See Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038; Leon, 468 U.S. at 918 n. 19, 104 S.Ct. at 3418 n. 19; Brown, 460 U.S. at 748-49, 103 S.Ct. at 1546-47. See also, e.g., United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988) (when officers grossly exceed scope of warrant the particularity requirement is undermined and suppression of all evidence is required). In determining whether that doctrine applies in the case of a redacted warrant the trial court must therefore ask if, when the officers came upon the item found in plain view, they were in a place where the redacted warrant — or a provision of the original warrant as to which the good faith exception applies — authorized them to be. See Fitzgerald, 724 F.2d at 637; Freeman, 685 F.2d at 953. And because the scope of a search is limited to the lawful authority granted by the warrant, see Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394 n. 7, 91 S.Ct. 1999, 2003 n. 7, 29 L.Ed.2d 619 (1971); Matias, 836 F.2d at 747, the item seized must have been discovered before the authority of the officers’ to be on the premises has expired. See Horton, 496 U.S. at 140-41, 110 S.Ct. at 2310; United States v. LeBron, 729 F.2d 533, 537-38 & n. 3 (8th Cir.1984); Freeman, 685 F.2d at 953 n. 6. See also Hicks, 480 U.S. at 325 (taking action unrelated to the objectives of the authorized intrusion produces a new invasion of privacy). CONCLUSION Accordingly, the district court’s order granting appellee’s motion to suppress is remanded for further findings in accordance with this opinion and a determination as to whether the shotgun" }, { "docid": "22911139", "title": "", "text": "from the illegality of the entry. Obviously, an illegal entry does not vitiate the arrests pursuant to concededly valid arrest warrants. If the arrests here had been illegal — e. g., without a warrant or probable cause — then use of the fruits of those arrests would have entitled appellants to invoke the exclusionary rule. See Edwards v. Swenson, 454 F.2d 1106, 1111 (8th Cir.), cert. denied, 406 U.S. 909, 92 S.Ct. 1619, 31 L.Ed.2d 820 (1972) (citing Fifth Circuit and other cases). But the arrests, if not the entry, were proper. The arrest warrants represent judicial sanction of the deprivations of the suspects’ liberties. Possession of the warrants was a completely self-validating justification for the arrests regardless of the circumstances under which the police reached the location where they served the warrants. To hold otherwise would mean that a suspected felon could claim what amounts to temporary sanctuary in the home of another and would require us to contemplate with equanimity the prospect of a section 1983 suit by him against the officers who arrested him on a valid warrant, which seems self-evidently absurd. Thus, the arrests are valid, though the method of effecting them be not. The Supreme Court has held that items seized in warrantless searches incident to lawful arrests are admissible. Such searches are considered “reasonable” in fourth amendment terms because they are necessary to protect the arresting officers’ safety and prevent the concealment or destruction of evidence. See Chimel v. California, 395 U.S. 752, 762-64, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). But the admissibility of items seized pursuant to other warrantless search exceptions, such as the “plain view” or “hot pursuit” doctrines, has turned on “an extraneous valid reason for the officer’s presence.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971). See also id. at 465-66, 91 S.Ct. 2022. Thus, we must examine the reason for the officers’ presence in the place where they made the seizures because the admissibility of evidence obtained in the warrantless search depends on whether the items were seized incident to" }, { "docid": "331304", "title": "", "text": "knowledge or recklessness on the part of agent Simmons, the inaccuracies in the affidavit do not affect the warrant’s validity. We note further that neither the supposed lack of automobile insurance nor the deportation warrant had any bearing on probable cause to believe that Fawole had committed insurance fraud. Ill Finally, Fawole contends that the Alabi passport should have been suppressed because its seizure was outside the scope of the warrant and did not satisfy the requirements of the plain view doctrine. The warrantless seizure of private possessions is permissible under the “plain view” doctrine if the seizure meets three conditions. Texas v. Brown, 460 U.S. 730, 736-37, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502 (1983) (plurality); United States v. Dart, 747 F.2d 263, 269 (4th Cir.1984). First, the police officer “must be engaged in a lawful intrusion or must otherwise legitimately occupy the position affording him a ‘plain view.’ ” 460 U.S. at 737 n. 3, 103 S.Ct. at 1540 n. 3. Second, the police officer must discover the incriminating evidence “inadvertently.” 460 U.S. at 737, 103 S.Ct. at 1540, quoting Coolidge v. New Hampshire, 403 U.S. 443, 470, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 (1971). Third, it must be “immediately apparent” to the officer that the item may be contraband or evidence of a crime. 460 U.S. at 737, 103 S.Ct. at 1540, quoting Coolidge, 403 U.S. at 466, 91 S.Ct at 2038. We conclude that all three elements are satisfied in this case. First, the police officers were legitimately in a position to discover the passport. The search was authorized by a valid warrant. Although the warrant did not authorize federal agents to search Fawole’s home, their participation in the search does not require suppression of the passport because the warrant was obtained and the search was executed in good faith by the state officer. The passport was discovered in a briefcase that the officers reasonably opened and searched in their effort to find books, papers, and other records of the corporation from which Fawole reportedly derived his income. See United States v. Crouch, 648 F.2d" }, { "docid": "22911140", "title": "", "text": "arrested him on a valid warrant, which seems self-evidently absurd. Thus, the arrests are valid, though the method of effecting them be not. The Supreme Court has held that items seized in warrantless searches incident to lawful arrests are admissible. Such searches are considered “reasonable” in fourth amendment terms because they are necessary to protect the arresting officers’ safety and prevent the concealment or destruction of evidence. See Chimel v. California, 395 U.S. 752, 762-64, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). But the admissibility of items seized pursuant to other warrantless search exceptions, such as the “plain view” or “hot pursuit” doctrines, has turned on “an extraneous valid reason for the officer’s presence.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971). See also id. at 465-66, 91 S.Ct. 2022. Thus, we must examine the reason for the officers’ presence in the place where they made the seizures because the admissibility of evidence obtained in the warrantless search depends on whether the items were seized incident to the valid arrest or merely as part of an exploratory search of the premises after the illegal entry. (3) Exploratory search. Although Chandler does not seek suppression of the pistol found on his person, all appellants object to the drugs and paraphernalia found in plain view after the officers’ charge on the bathroom. The police attempt to justify their presence in the bathroom on two grounds: that they had probable cause to believe that Troise, the third suspect named in their arrest warrants, was present in the house, and that they needed to conduct a safety search to prevent danger to the arresting officers. We need not consider their belief in Troise’s presence, because their bathroom entry can survive as a protective sweep to avoid threats from unknown persons. The Supreme Court in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1965), declared that although an arresting officer can search the suspect’s person for weapons and evidence that could be- destroyed, as well as the immediate area where the arrestee" }, { "docid": "9558768", "title": "", "text": "subjective good faith intent of finding narcotics, this finding is not determinative, as we explain below. There is no reason to doubt that the postal inspector was brought along for his expertise in spotting mail theft evidence. The narcotics detective testified that postal theft and methamphetamine dealing often go hand in hand. The district judge noted that “it’s an amazing thing. I don’t think I’ve ever seen a mail — theft of mail case that didn’t involve methamphetamine users.” We need not decide whether the postal inspector was mistaken in thinking he lacked probable cause. Both the postal inspector and the narcotics detective suspected they would find mail theft evidence. But they did not just go looking for mail theft evidence on a pretext of looking for narcotics evidence. They were interested in finding narcotics evidence, had a good warrant to search for it, looked where narcotics evidence might be expected to be found, and found mail theft evidence in plain view, at least to a trained observer. The evidentiary significance of the subjective good faith of the officers is that it tends to show they really did confine their search to places which would be searched for methamphetamine evidence, and did not expand it to places where they would expect to find postal theft but not methamphetamine evidence. Once the police are lawfully searching in a place for one thing, they may seize another that is in plain view, if its incriminating nature is immediately apparent. Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990). After the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564 (1971), it had been thought that the discovery of the thing not described in the warrant had to be “inadvertent,” but Horton holds that inadvertence is not required. If a police officer has a valid warrant for one item, and “fully expects” to find another, based on a “suspicion ... whether or not it amounts to probable cause,” the suspicion or expectation does not defeat the lawfulness of" }, { "docid": "7303511", "title": "", "text": "the front, and one window on the south end of the front side. There exists a wooden telephone pole with a large silver colored light located in the residence's lot, which is located between the residence and Fillmore Street. The structure has a television antenna and a weather vane on its roof. Proceeding south on Fillmore from 26th Street, the residence is the last house on the left bordered by a field to its south.\" This description was sufficient to support the officers’ search of Barnes’ house, as well as other structures on Barnes’ property. See United States v. Griffin, 827 F.2d 1108, 1113-15 (7th Cir.1987). . We are troubled by FBI Agent Gary Dunn’s statements that during the search, he and the other agents conducting the search looked for ”[P]ossible fruits of the crime, things of that nature.” If the agents intended at the outset to search for such items, a warrant particularly describing such items was required. See Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72 (1984). However, given our determination, infra, that the agents were entitled to look in the notebook for cocaine, which was clearly set forth in the warrant, we need not address Barnes’ contention that the FBI agents’ search of the notebook was part of a general exploratory search of Barnes’ home in violation of the fourth amendment. . Horton holds that the discovery of evidence in \"plain view” need not be inadvertent, as a plurality of the Supreme Court had previously held in Coolidge v. New Hampshire, 403 U.S. 443, 469, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 (1971). See also United States v. Schire, 586 F.2d 15, 17 (7th Cir.1978). Thus, we need not address Barnes' claims that the agents’, discovery of the notebook was inadvertent. . As noted above, the trial court’s special voir dire examination of jurors Herron and Madison took place out of the presence of the other members of the jury, but in the presence of the defendant, , defense counsel and the prosecuting attorney. See supra note 7. . We note" }, { "docid": "3882619", "title": "", "text": "we summarized the import of these cases in an opinion by Judge Politz: The common thread in Green, Brand, and Roberts is two-pronged: the law enforcement officer initially entering the protected area was justified in doing so, and, while there, he observed items of an obviously illegal character. In such an instance, the officer could appropriately share the information with other law enforcement personnel bearing particular responsibility in that field. In those instances, warrants were not necessary to authorize the conduct of the later arriving officers. We noted, as well, that the “plain view doctrine is limited to ‘inadvertent discoveries of evidence by police officers acting within the scope of an otherwise justified intrusion.’ [Roberts,] 619 F.2d at 381 (quoting Coolidge v. New Hampshire, 403 U.S. [443, 469, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 (1971) (plurality opinion) ]).” These cases inform us that we look to the element of intrusiveness to determine whether the presence of additional officers violates the fourth amendment: If their presence effects no intrusion other than that which is implicated by a lawful entry, there is no violation. We look first, then, at whether the entry by the officers who were in fact looking for the items listed in the warrant was lawful. We need not consider, in this case, whether the search warrant was valid, as the jury specifically found that all of the officers acted in the good-faith belief that the warrant was valid. Under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), this good-faith belief renders lawful the presence of the officers who entered under authority of the warrant and were searching for items listed therein. We next inquire whether the officers who were not looking for items in the warrant enlarged, by their presence and their activities, the extent of the intrusiveness. In other words, we must heed the warning of United States v. Brand that “the later officials must confine their intrusion to the scope of the original invasion....” 556 F.2d at 1317 n. 9. This matter was addressed by the jury, which specifically" }, { "docid": "9837111", "title": "", "text": "1014 (9th Cir.1983) (A protective search is lawful if officers have a reasonable belief based on specific and articulable facts that dangerous persons may be in the area.), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); see also United States v. Hill, 730 F.2d 1163, 1169-70 (8th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 255, 83 L.Ed.2d 192 (1985). Second, based on Quintana’s statements and the PSU’s observations, exigent circumstances warranted the bomb squad’s search of the potentially dangerous brief case. Third, Inspector Harp’s entry into the house to identify Quintana was authorized under the search warrant. Newton argues that the discovery of the weapons and explosives in the house was not inadvertent because the officers knew of their presence before they entered the house. Significantly, however, Newton does not contend that the Marshals Service had probable cause to believe they would find these items in the house at the time they applied for and received the search warrant. Nor does he argue that the search warrant for Quintana was a subterfuge to gather evidence against Newton or the other occupants of the house. Instead, Newton argues that once he and Quintana told the officers about the weapons and explosives, the officers had an obligation to update the warrant to include these items. According to Newton, the officers’ failure to update the warrant despite the fact that they had ample time in which to do so renders the weapons and explosives inadmissible. We disagree. The purpose of the inadvertency requirement is to prevent the premeditated seizure of items not listed in the warrant. See United States v. $10,000 in United States Currency, 780 F.2d 213, 218 (2d Cir.1986). The inadvertency requirement is not met “[wjhere the police ‘know in advance’ that certain evidence is present and intend to seize it, yet fail to particularize it in their warrant application.” Id. (quoting Coolidge v. New Hampshire, 403 U.S. 443, 471, 91 S.Ct. 2022, 2040-41, 29 L.Ed.2d 564 (1971)). Even Newton does not contend that we are presented with this situation. Indeed, had the officers immediately and" }, { "docid": "3882621", "title": "", "text": "found that no officer searched in places where it would be unreasonable to find the items described m the warrant. Thus, the intrusion, for fourth-amendment purposes, was the same as it would have been if no officer had been present who was not looking only for items listed in the warrant. In other words, the search of Mr. Crowder’s premises — and any consequent invasion of privacy — at no point exceeded the search that was authorized by the warrant, as no officer went beyond the intrusion which the warrant countenanced. It follows that under Green, Brand, Roberts, and Vance the presence and participation of additional officers — even those present to investigate other crimes or to provide expert guidance — does not render unlawful an intrusion by other officers who are properly on the scene. The facts here are perhaps closest to those in Green, where the fire marshal, lawfully on the scene, uncovered items that arguably were instrumentalities of crime. He called “a federal officer, who is expert in identifying the type of contraband discovered, to enter the premises to confirm the belief of the State officer and to take custody of the evidence.” Green, 474 F.2d at 1390. In the case sub judice, the evidence reflects that, at least for the most part, the officers looking for the items in the warrant did the “searching” — opening of drawers, and the like — and that when items were unexpectedly uncovered that were not listed in the warrant but that may have been contraband, other officers were on the scene to determine, by using their own lists or their own knowledge, whether the items appeared to have been stolen. The first officers “could appropriately share the information with other law enforcement personnel bearing particular responsibility in that field.” Vance, 676 F.2d at 189. It is of no moment that the officers here all arrived at about the same time. For evaluating the extent of an intrusion under the fourth amendment, it would make no sense to require one set of officers to enter, pursuant to a warrant, and" }, { "docid": "21596763", "title": "", "text": "the officer has knowledge approaching certainty that the item will be found, we see no reason why he or she would deliberately omit a particular description of the item to be seized from the application for a search warrant. Specification of the additional item could only permit the officer to expand the scope of the search. On the other hand, if he or she has a valid warrant to search for one item and merely a suspicion concerning the second, whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first. Id. at 138-39, 110 S.Ct. at 2308-09. We see no principled rationale to amend this firmly established test so as to insulate from seizure clearly incriminating items found in plain view during a lawful search for other materials merely because such items were named explicitly in an invalid portion of a warrant. Given that the plain view doctrine permits the government to seize items that are not named in an invalid portion of a warrant — so long as the officer has not violated the Fourth Amendment in arriving at the site, the incriminating nature of the material was immediately apparent, and the search was confined to the area authorized by the valid portion of a warrant — the district court’s new restriction infuses an unwarranted restriction that is not supported by the principles that inform Fourth Amendment jurisprudence. Indeed, three circuits have expressly stated that even if part of a warrant is invalid, the police may properly seize evidence in plain view that is listed in the invalid portion of the warrant, provided that the redacted warrant justifies police presence on the site. United States v. George, 975 F.2d 72, 79 (2d Cir.1992) (explaining that “a redacted warrant may justify a police intrusion, satisfying in this fashion this crucial element of the plain view doctrine”); United States v. Holzman, 871 F.2d 1496, 1513 (9th Cir.1989) (“[Djespite the lack of probable cause to support the warranted search" } ]

[ { "docid": "22728321", "title": "", "text": "report and recommendation. The district court for the District of Puerto Rico has adopted in substance the relevant section of the Federal Magistrate’s Act, 28 U.S.C. § 636(b)(1). Puerto Rico District Court Rule 510.2, in its pertinent part, states as follows: “Any party may object to a Magistrate’s proposed findings, recommendations or report ... within ten (10) days after being served with a copy thereof, unless a different period of time is prescribed by the Magistrate or a Judge. Such party shall file with the Clerk of the Court, and serve on the Magistrate and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the legal basis for such objections. Any party may respond to another party’s objections within ten (10) days after being served with a copy thereof, unless the time is shortened by the Magistrate or the Judge. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate.” In Park Motor Mart, 616 F.2d at 605, and Escoboza Vega, 678 F.2d at 379, we held that a party waived his right to a de novo review of a magistrate’s report by failure to file objections within ten days. Since these rulings, the Supreme Court has pronounced itself on this waiver issue in Thomas v. Arn, — U.S. -, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985) as follows: “We hold that a court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate’s recommendation, upon the filing of objections with the district court identifying those issues on which further review is desired. Such a rule, at least when it incorporates clear notice to the litigants and an opportunity to seek an extension of time for filing objections, is a valid exercise of the supervisory power that does not violate either the" } ]

[ { "docid": "20633149", "title": "", "text": "motion. . This case does not involve a situation where ADP is being challenged for failing to make a disclosure which was necessary to prevent a partial disclosure from being misleading. See Nota, 45 Mass.App.Ct. at 19, 694 N.E.2d at 404. While under such circumstances a distinct relationship of trust or confidence may not be necessary, that is not the situation here. . The unpublished decision of Infra-Metals Co. v. Topper & Griggs Group, Inc., No. Civ. A. 3:05-CV559, 2005 WL 3211385, at *1 (D.Conn. Nov.30, 2005), relied on by JSB not only relies on the same standard as the above-cited cases, but also notes that to the extent that successor liability is based on a fraud theory, it must be pleaded with the specificity required by Fed.R.Civ.P. 9(b). Id. at n. 4. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998)." }, { "docid": "14363453", "title": "", "text": "Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Am, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party’s objections within ten (10) days after being served with a copy thereof." }, { "docid": "16232181", "title": "", "text": "the alleged breach occurred in Massachusetts and that a transfer is not appropriate. If the District Judge to whom this case is assigned disagrees with the conclusion that the alleged breach occurred in Massachusetts, I RECOMMEND that the plaintiff be permitted to do some discovery on the underlying facts upon which a decision can be made as to whether the Plan is “found” in Massachusetts. VI. Review by the District Judge The parties are hereby advised that pursuant to Rule 72, Fed.R.Civ.P., any party who objects to these proposed findings and recommendations must file a specific written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). . In the latter part of April, 2001, this case was referred to the undersigned for the conduct of Rule 16(b) and/or pretrial proceedings. The motion to dismiss now under consideration shall be determined on a report and recommendation basis in accordance with 28 U.S.C. § 636(b). . Central States has admitted these identifying facts in its answer. (Answer ¶ 3 § 2) . According to Exhibit C to the Affidavit of Michael Neuman (¶ 6), Ms. McClellan was covered under the health insurance of her husband, James McClellan. James B. McClellan was the \"participant” in the Plan; Ms. McClellan was the \"beneficiary” as those" }, { "docid": "10609467", "title": "", "text": "objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party’s objections within ten (10) days after being served with a copy thereof." }, { "docid": "7665119", "title": "", "text": "correct. Q. And you testified that these amendments are sent along with her statement; is that right? A. Yes. (Id. at 14.) . Plaintiff makes no argument that the \"opt out” notification procedure MBNA followed did not comply with federal or Delaware law. . This allegation has not been changed in Plaintiffs second amended complaint. (See Second Amended Complaint ¶ 18.) . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party’s objections within ten (10) days after being served with a copy thereof." }, { "docid": "5660313", "title": "", "text": "issue, in that her claim against Ott really sounds in negligence only. . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Am, 474 U.S. 140, 154-55, 106 S.Ct. ' 466, 474-75, 88 L.Ed.2d 435 (1985). A parly may respond to another party's objections within ten (10) days after being served with a copy thereof." }, { "docid": "11234339", "title": "", "text": "a claimant who is approaching advanced age, (fifty-five and older), with a certain level of skill and education. See 20 C.F.R. § 404, Subpt. P, App. 1. These regulations apply to claimants who have the capacity to do only sedentary work. In making her disability determination, however, the ALJ concluded that Plaintiff had a residual functional capacity for light work and correctly applied 20 C.F.R. §§ 202.13, 202.14 and 202.15. As a result, the ALJ determined that, regardless of whether Plaintiffs semi-skilled work experience was or was not transferable, there was no disability. (A.R.18-19.) . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party’s objections within ten (10) days after being served with a copy thereof." }, { "docid": "20566242", "title": "", "text": "the end-user consumer claims. As detailed above, however, plaintiffs have failed to establish that they are entitled to subrogation. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objec tion thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Am, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "6669743", "title": "", "text": "the position formerly taken by him.”) (internal citation omitted). However, the parties have not addressed the issue of judicial estop-pel, and Mr. Herrmann's relationship with Schmid would need to be such that he was bound by representations to the court made on behalf of Schmid rather than on behalf of Mr. Herrmann personally. Consequently, this issue will not be addressed further herein. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.l983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.l999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "2777191", "title": "", "text": "(Docket No. 85). . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998)." }, { "docid": "10609466", "title": "", "text": "the trial transcript and direct appeal over nine year [sic] resulted in denial of his right to the effective assistance of counsel.”); Ground Three (“Inordinate and unjustified delays in appellate process over nine years processing and delivery of the trial transcripts and direct appeal spurred the petitioner to seek hearing to determine whether his direct appeal was no more than a meaningless ritual because the conviction [was] obtained by use of evidence gained pursuant to unconstitutional search and seizure and unlawful arrest.”); and Ground Four (\"Inordinate and unjustible [sic] delays in appellate process over nine years processing and delivery of the trial transcripts and direct appeal demands petitioner seek hearing to determine whether his direct appeal was no more than a meaningless ritual because of denial of right [to] the effective assistance of counsel, privilege against self-incrimination, and unconstitutional search and seizure.”).) . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party’s objections within ten (10) days" }, { "docid": "7813587", "title": "", "text": "that Defendants’ continued L.R. 56.1 failures warrant denial of the motion. (PL's Opp'n at 2-3). The Court empathizes with PS’s concerns, particularly given the previous order of this Court (Docket No. 59), but has nonetheless considered Defendants’ 56.1 statement as revised. . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Am, 474 U.S. 140, 154-55, 106 S.Ct. 466, 474-75, 88 L.Ed.2d 435 (1985). A party may respond to another party's objections within ten (10) days after being served with a copy thereof." }, { "docid": "113038", "title": "", "text": "the plaintiffs had not been fully reimbursed for prepayment penalties and interest charges that they had incurred. See id. The McIntosh court concluded that a claim for rescission remained a permissible means of attempting to recover these costs even though the plaintiffs had paid off their loan. Id. Thus, the plaintiffs' right to rescind following payoff of the loan was in no way dependent upon a claim for damages pursuant to 15 U.S.C. § 1640. Here, the plaintiffs are seeking reimbursement of interest and finance charges through rescission. See Pl.’s Mem. at 5; Def.'s Mem. at 6. Under McIntosh, this is permissible whether or not the subject loans have been paid off. . Nothing herein or in the original R & R addresses the merits of the plaintiffs’ claims. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "113033", "title": "", "text": "to proceed on an individual basis. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998). . There is no support for the plaintiffs’ argument that federal law, rather than state law, controls in this instance. The case law is clear that credit transactions within Massachusetts that are subject to the CCCDA are exempted from various provisions of TILA, including § 1635 regarding the right to rescind. See Fidler v. Central Coop. Bank, 226 B.R. 734, 736 (Bankr.D.Mass.1998). Accordingly, where, as here, the subject loans were secured by the borrowers' Massachusetts residences, the CCCDA, and not TILA, governs the proposed class members' rescission claims. Id.; see also Belini v. Washington Mutual Bank, 412 F.3d 17, 26-27 (1st Cir.2005) (because of the Massachusetts exemption, disclosure requirements and mechanics of rescission are governed by state law, not TILA); Desrosiers v. Transanierica Fin. Corp., 212 B.R. 716, 722 n. 6 (Bankr.D.Mass.1997)" }, { "docid": "21149525", "title": "", "text": "reason for the leave becomes known. Upon receipt of the requisite information from the employee or the medical certification which confirms the leave is for an FMLA reason, the preliminary designation becomes final.” 29 C.F.R. § 825.208(e)(2). . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party's objections within ten (10) days after being served with a copy thereof." }, { "docid": "12882954", "title": "", "text": "no longer have been housed at NCCI, the locus of the alleged illegal acts. See Lopez v. Garriga, 917 F.2d 63, 67 (1st Cir.1990) (\"[A] court does not retain authority to grant an injunction, even though the plaintiff originally had standing to ask for one, if during the course of the proceeding the plaintiff loses his toehold on the standing ladder.”). . The court notes that June 15th was a Friday and Defendants’ motion was date-stamped at 10:58 a.m. on Monday, June 18th, the next day the court was open for business. . The parties are advised that under the pro visions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party’s objections within ten (10) days after being served with a copy thereof." }, { "docid": "18918582", "title": "", "text": "Crotched Mountain Rehabilitation Center, Inc., 31 F.3d 9, 14 (1st Cir.1994) (quoting Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st Cir.1988). See also Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (Plaintiff \"may not rest upon mere allegations; [he] must set forth specific facts demonstrating that there is no genuine issue for trial.”) . A continuing violation may also be shown if there is a systemic policy of discrimination. Jensen, 912 F.2d at 523. No systemic policy, however, has been claimed in this case. . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); and Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). A party may respond to another party's objections within ten (10) days after being served with a copy thereof." }, { "docid": "18238261", "title": "", "text": "proceedings conducted pursuant to the statutory power of sale. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Sckweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Am, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998)." }, { "docid": "21133160", "title": "", "text": "with occasional standing or walking); Troupe v. Heckler, 618 F.Supp. 248, 254 (S.D.N.Y.1985) (plaintiff machine operator and construction worker could only sit \"for less than six hours in an eight-hour workday”). Unskilled labor centers around repetitive movements which allow for very little accommodation in job description. See Jennings, 703 F.Supp. at 840 (noting that “unskilled jobs are structured such that a person cannot ordinarily sit or stand at will”); Soc. Sec. Ruling 83-12. . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); and Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Am, 474 U.S. 140, 154-55, 106 S.Ct. 466, 474-75, 88 L.Ed.2d 435 (1985). A party may respond to another party's objections within ten (10) days after being served with a copy thereof." }, { "docid": "9433295", "title": "", "text": "99 F.3d 476, 479 (1st Cir.1996) (\"the Blockburger rule depends on statutory analysis, not on evidentiary comparisons\"). Rather, the Court merely accepts the factual underpinnings of the indictment. Thus, despite Defendant's urgings, the Court has not accepted the more expansive approach of the Second Circuit in United States v. Seda, 978 F.2d 779, 781 (2d Cir.1992), in which the court approved the con sideration of actual allegations in a particular case. . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 474-75, 88 L.Ed.2d 435 (1985). A party may respond to another party’s objections within ten (10) days after being served with a copy thereof." } ]

[ { "docid": "22997356", "title": "", "text": "539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 11972); and Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970). . This factor is what distinguishes these cases from Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), because there in enforcing the creditor’s writ of replevin, issued summarily by a court clerk, a state officer seized the repossessed goods. Some of the evils are still present —no state official participates in the decision to repossess, nor does one evaluate the need for immediate seizure, nor does one review the basis for the claim to repossession —but because control over state power has not been abdicated, the State here does not act in the dark. Cf. Fuentes, supra, 407 U.S. at 93, 92 S.Ct. 1983. . California did not enact the Uniform Conditional Sales Act and the courts in this area were dependent upon case law and terms of the agreement. Upon the buyer’s default, the seller could repossess under the terms of the contract, or if this right was not expressly given, it could have been implied. See, e. g., Johnson v. Kaeser, 196 Cal. 686, 694-695, 239 P. 324 (1925); Miller v. Steen, 34 Cal. 138, 144 (1867); I-Iines, Rights and Remedies Under California Conditional Sales, 23 Cal.L.Rev. 557 (1935). . 2 Gilmore, Security Interests in Personal Property § 44.1, at 1212 (1965); Uniform Conditional Sales Act § 16, comment; 2 F. Pollack & F. Maitland, History of English Law, at 574-77 (2d ed. 1899). . “The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.” California Civil Code § 22.2 (West 1954). . Moose Lodge v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830. (1967); Burton" } ]

[ { "docid": "970879", "title": "", "text": "the vehicle. On or about October 7, 1971, the seller assigned the conditional sales contract to the defendant bank, State National Bank of Connecticut. After seven instal-ments, the plaintiff defaulted and made no payments for June, July or August, 1972. On or about August 23, 1972, the defendant repossessed the automobile. On November 30, 1972, the defendant moved to dismiss the complaint for failure to state a claim pursuant to 42 U.S. C. § 1983 upon which relief could be granted and for lack of subject matter jurisdiction under 28 U.S.C. § 1343. On April 2, 1973, Judge Newman, having heard the parties, dismissed the complaint on the former ground, finding “no action under color of state law.” On April 3, 1973, the judgment appealed from was entered. The initial, and here the key question is whether or not the defendant Bank’s peaceful repossession of the plaintiff’s automobile on August 23, 1972, constitutes “state action” so as to support a claim under 42 U.S.C. § 1983. Since the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed.2d 835 (1883), it has been recognized that the Fourteenth Amendment applies only to actions of the “States” and not to actions which are “private.” The “under color of state law” provision in section 1983 is equivalent to the state action requirement of the Fourteenth Amendment. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 n. 7, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; United States v. Price, 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). The existence of state action appears significantly in prejudgment seizures where a state official participates in the action which is the subject of complaint. Thus, in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), a court clerk’s ex parte issuance of a summons, pursuant to a Wisconsin statute authorizing prejudgment garnishment of wages, provided a sufficient intrusion of the State to constitute state action. In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), state statutes authorized" }, { "docid": "22137371", "title": "", "text": "were still waiting for the attorney to arrive at the scene when the officers left. This Court cannot find any State action in this situation which would invoke the jurisdiction of the Federal Court. Therefore, the case is dismissed as to all parties. It is important to note that the Court weighed the evidence in reaching that conclusion. “There is some dispute . . . ” The Court’s gratuitous comment that the Menchacas would listen to their lawyer and not the commands of a police officer threatening arrest is simply amazing. I can find nothing in the record to indicate that Mr. Menchaca threatened anyone with a machete. II. The self-help repossession provision of the Uniform Commercial Code, adopted in Texas as Tex.Bus.Comm.Code Ann. Art. 9.503 (Vernon 1975) reads in pertinent part: Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of peace or may proceed with action. This provision has been interpreted in Texas to mean that a repossession must be “peaceable,” accomplished without force or violence. Ford Motor Credit Company v. Cole, 503 S.W.2d 853 (Tex.Civ.App. — -Fort Worth 1973, writ dism’d). Clearly, it contemplates that if peaceable repossession cannot be had, the remedy of the would-be repossessor lies with the courts. See Hubbard v. Lagow, 576 S.W.2d 163 (Tex.Civ. App. — Austin 1979, writ ref’d n. r. e.). That the “state action” requisite for § 1983 jurisdiction would be present, if the Menchacas should prevail on their assertions of police intervention and facilitation of a § 9-503 repossession, cannot be doubted. By Sniadaeh v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the Supreme Court has declared that the states may not contravene the constitutional right to be heard by authorizing a seizure of property in the possession of one person upon the application of another without providing the opportunity for a" }, { "docid": "844393", "title": "", "text": "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. . E. g., Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (court clerk’s ex parte issuance of a summons, pursuant to Wisconsin statute authorizing prejudgment garnishment of wages, provided a sufficient intrusion on the part of State to constitute “state action”); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (clerk’s ex parte issuance of writ of replevin and its prejudgment execution by state official pursuant to state law constituted “state action”); North Georgia Finishing, Inc. v. Di-Chem, 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (similar to Sniadach except that prejudgment garnishment statute did not apply to wages); Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974) (in upholding prejudgment assignment statute on finding of no “state action,” court emphasized the absence of state participation). . E. g., Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974); Male v. Crossroads Associates, 469 F.2d 616, 621 (2d Cir. 1972). . For the significance of the distinction between a statute which authorizes otherwise impermissible conduct and one which, in regulating previously lawful conduct, acknowledges its lawfulness see Shirley v. State National Bank, 493 F.2d 739 (2d Cir. 1974) and Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974). In Shirley the court found no “state action” where, upon the default of the buyer, a car was repossessed through self-help in accordance with the terms of the contract of sale. The court reasoned that, although the repossession was effected pursuant to the terms of a New York statute, the statute was merely regulatory, since the right to repossess property without a hearing in this type of situation had been recognized prior to the enactment of the statute, and that, therefore, the repossession was not" }, { "docid": "432406", "title": "", "text": "must demonstrate: “The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the ‘Constitution and laws’ of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.’ This second element requires that the plaintiff show that the defendant acted ‘under color of law.’ ” Adickes v. S. H. Kress Co. (1969) 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142. Most recently, the Supreme Court struck down state replevin statutes which afforded no hearing before repossession by the seller for nonpayment of installment charges. Fuentes v. Shevin (1972) 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556. There the repossession stemmed from state statutes, and it was held that these statutes were constitutionally infirm because the purchaser had no right to a hearing of any sort before being deprived of possession of the household goods which were replevined. The Court seemingly left open the type of hearing which was required, because it is said at 407 U.S. 86, 92 S.Ct. 1997: “The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause. While the length and consequent severity of a deprivation may be another factor to weigh in determining the appropriate form of hearing, it is not decisive of the basic right to a prior hearing of some kind.” Lynch v. Household Finance Corp. (1972) 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424, had to do with prejudgment garnishment statutes. It was before the Court on review of a dismissal by the lower 3-judge court for the assigned reasons that, (a) 42 U.S.C. § 1983 and 28 U.S.C. § 1343 created no jurisdiction over property rights, and (b) the relief prayed would violate the anti-injunction statute, 28 U.S.C. § 2283. The Supreme Court reversed on both" }, { "docid": "22137372", "title": "", "text": "provision has been interpreted in Texas to mean that a repossession must be “peaceable,” accomplished without force or violence. Ford Motor Credit Company v. Cole, 503 S.W.2d 853 (Tex.Civ.App. — -Fort Worth 1973, writ dism’d). Clearly, it contemplates that if peaceable repossession cannot be had, the remedy of the would-be repossessor lies with the courts. See Hubbard v. Lagow, 576 S.W.2d 163 (Tex.Civ. App. — Austin 1979, writ ref’d n. r. e.). That the “state action” requisite for § 1983 jurisdiction would be present, if the Menchacas should prevail on their assertions of police intervention and facilitation of a § 9-503 repossession, cannot be doubted. By Sniadaeh v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the Supreme Court has declared that the states may not contravene the constitutional right to be heard by authorizing a seizure of property in the possession of one person upon the application of another without providing the opportunity for a hearing. The question naturally arose whether § 9-503 of the U.C.C., in providing for self-help repossession, by its very existence constituted the necessary state action ingredient to a suit for deprivation of procedural due process rights via § 1983. It is now settled that a private repossession under the Code provision, alone, is not state action. Calderon v. United Furniture Company, 505 F.2d 950 (5 Cir. 1974); Brantley v. Union Bank and Trust Co., 498 F.2d 365 (5 Cir. 1974); James v. Pinnix, 495 F.2d 206 (5 Cir. 1974); See also Annot., Validity, Under Federal Constitution and Laws, of Self-Help Repossession Provision of § 9-503 of Uniform Commercial Code, 29 A.L.R.Fed. 418 (1976). Between these two points, recovery of property through procedures involving process issued under the authority of the state without hearing, and wholly private recovery under enabling legislation provid ed by the state, will fall a situation where the police directly facilitate a private recovery. Assuming, arguendo, that the Menchacas are correct, that is the situation before us. I am emphatically of the" }, { "docid": "13726238", "title": "", "text": "the United States District Court and, by leave, plaintiffs were permitted to file an amended complaint on October 16, 1973. Jurisdiction was premised under 28 U.S.C. §§ 1331(a), 1343(3), 1343(4), 2201, 2202, and 42 U.S.C. § 1983. Plaintiffs sought a judgment declaring (a) that N.D.C.C. Chap. 32 — 08 was unconstitutional on its face and (b) that the seizure of plaintiffs’ residence and automobile did not comport with the requirements of due process as guaranteed by the fourteenth amendment. Additionally, plaintiffs sought actual and punitive damages, but did not seek injunctive relief. The state court proceedings have been stayed pending the determination of this case. Clearly, we must focus upon three recent Supreme Court decisions, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), particularly the Mitchell case. The rights of prejudgment creditors were first significantly eroded in Sniadach v. Family Finance Corp., supra, where the Court overturned a Wisconsin statute which allowed a debtor’s wages to be garnished by a court summons issued by the court clerk on the request of a creditor. The debtor was not accorded a hearing before the seizure and was unable to quash the garnishment suit. Mr. Justice Douglas held that there were no extraordinary circumstances justifying such a summary procedure, and that therefore the Wisconsin statute denied the debtor due process. He also emphasized the drastic consequences a wage garnishment may have upon the debtor, consequences which could “drive a wage-earning family to the wall.” 395 U.S. at 341-342, 89 S.Ct. at 1823. In Fuentes v. Shevin, supra, the Supreme Court extended the Sniadach reasoning to summary prejudgment remedies other than garnishment, overturning Florida and Pennsylvania replevin statutes. The Court in Fuentes pointed out that the Florida statute did not require the applicant to make a convincing showing before seizure that the goods were, in fact, “wrongfully detained.” 407 U.S. at 73-74, 92 S.Ct. 1983. Rather, the" }, { "docid": "6294888", "title": "", "text": "property without due process of law in violation of the Fourteenth Amendment. Subsequently, the Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), speaking through Mr. Justice Stewart, held that certain state statutes providing for the summary seizure of personal property by means of a prejudgment replevin procedure involving the sheriff’s execution of a writ issued by a court clerk violated the due process clause of the Fourteenth Amendment insofar as it denied a debt- or the right to notice and the opportunity for a hearing prior to the loss of any possessory interest in that personal property. However, in the recent case of Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), it would appear that Fuentes has been effectively overruled. See concurring opinion of Powell, J., id. at 623, 94 S.Ct. 1895, and the dissenting opinion of Stewart, J., id. at 629, 94 S.Ct. 1895. In Mitchell, judicial sequestration procedures in Louisiana, similar to the replev-in statutes struck down in Fuentes, allowed a creditor to obtain, on an ex parte basis from a judicial authority, a writ of sequestration upon submission of an affidavit and posting of a security bond. Thereupon a public official, without providing notice and a hearing to the debtor, seized the property. Distinguishing judicial control over the process from the court clerk’s control in Fuentes, the Supreme Court found the procedure was not invalid. Prior to Mitchell, the challenge to the Commercial Code’s self-help repossession provisions generated considerable litigation. However, the only federal appellate courts to have met the issue to date have failed to find significant state action present. Gibbs v. Titelman, 502 F.2d 1107 (3rd Cir., filed August 1, 1974); James v. Pinnix, 495 F.2d 206 (5th Cir., 1974); Nowlin v. Professional Auto Sales, Inc., 496 F.2d 16 (8th Cir. 1974), citing Bichel Optical Laboratories, Inc. v. Marquette National Bank, 487 F.2d 906 (8th Cir. 1973); Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2d Cir., 1974); Adams v. Southern California First National Bank, 492 F.2d" }, { "docid": "13326839", "title": "", "text": "named appellee had created a security interest in his automobile as collateral security for the indebtedness. The agreements provided that, in the event of default by an appellee, the creditor would have the right to retake the automobile, with or without judicial process — a practice commonly referred to as self-help repossession. The challenged statutes neither compel nor prohibit peaceable self-help repossession. Section 9-503 of the UCC, 12A Pa.Stat. § 9-503 provides: “Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.” Section 23 subd. A of the MVSFA, 69 Pa.Stat. § 623, subd. A provides: “When the buyer shall be in default in the payment of any amount due under a motor vehicle installment sale contract or when the buyer has committed any other breach of contract, which is by the contract specifically made a ground for retaking the motor vehicle, the seller or any holder, who has lawfully acquired such contract, may retake possession thereof. Unless the motor vehicle can be retaken without breach of the peace, it shall be retaken by legal process, but nothing herein shall be construed to authorize a violation of the criminal law.” The district court found that there was sufficient state involvement to constitute “state action” and held that under Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), lack of prior notice and an opportunity to be heard renders extra-judicial repossession unconstitutional. Since we believe that the requisite “state action” is not present and that therefore a cause of action under 42 U.S.C. § 1983 has not been alleged, we need not reach the due process issue. It is well-settled that the fourteenth amendment applies only to actions of the “States” and not to actions which are “private.” Under 42 U.S.C. § 1983, the “under color of state law” requirement is the same as the “state action” requirement of the fourteenth amendment. Adickes v." }, { "docid": "20550102", "title": "", "text": "contracts whose terms are self-executing. Unlike cases involving garnishment, replevin, claim and delivery, attachment, or distraint procedures, we deal here with repossession, which is a self-help remedy: the creditor, either by himself or by means of a private collection agency, may enter the premises of a debtor, remove the designated collateral, and dispose of it, all without the aid of any state official. Nor are these acts of repossession solely dependent on statutory authorization as, for example, liens under Innkeeper’s Lien laws. Rather, repossession is specifically provided for in a signed security agreement between the parties. Thus, argue the defendants, the taking is pursuant to private agreement with no state involvement on which to found jurisdiction. This court cannot agree, and finds the situation governed by the reasoning of the Supreme Court in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). That ease affirmed the constitutional infirmity of a clause in the California Constitution which prohibited restrictions on an individual’s right to sell property to whomever he chooses. The Supreme Court found that this provision, enacted as a repealer of California’s various anti-discriminatory housing legislation, actually served as state encouragement of private discriminations. Hence, despite the fact that all parties to the controversy in Reitman were private individuals not connected with the state and that no state personnel were concerned, the Court found in the mere enactment ot the statute state involvement sufficient to bring the alleged discriminatory acts within the purview of the Fourteenth Amendment. The cases here under consideration present an analogous situation. The repossessions complained of as violations of due process were ostensibly private acts pursuant to a contract. However, it cannot be seriously questioned that the presence of Sections 9503 and 9504 had a significant impact on the contents of that contract’s provisions. The specific reference to the Uniform Commercial Code in the Adams contract and to “immediate possession . . . according to law” in the Posadas contract are ample indication that in drawing up the agreements defendant creditors were “persuaded or induced to include” repossession by the fact that" }, { "docid": "13326849", "title": "", "text": "v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), as suggesting that “state action” encompasses any abdication by the state of “the power to decide that your rights are greater that another’s.” Although Fuentes clearly involved state action, the plurality opinion nonetheless spoke of a state’s abdication of effective control over “state power.” However, contrary to what the district court suggested, the “state power” to which Fuentes referred was the use of state power in the form of state officers to accomplish the seizures for the creditor. The plurality opinion recognized that at common law a creditor could “invoke state power” through the action of debt or detinue or alternatively a “creditor could . proceed without the use of state power, through self-help, by ‘distraining’ the property before a judgment.” The dissent in Fuentes also read the majority opinion as clearly distinguishing between state action and purely private action such as repossession: “It would appear that creditors could withstand the attack under today’s opinion simply by making clear in the controlling credit instruments that they may retake possession without a hearing, or, for that matter, without resort to judicial process at all.” 407 U.S. at 102, 92 S.Ct. at 2005. Thus, we find no support for the contention that the State of Pennsylvania has delegated a traditional state function. We therefore conclude that appellees have failed to show the requisite “state action” necessary to support a claim under 42 U.S.C. § 1983. Accord, James v. Pinnix, No. 73-1866, 495 F.2d 206 (5th Cir., filed June 10, 1974); Nichols v. Tower Grove Bank, No. 73-1621, 497 F.2d 404 (8th Cir., filed May 13, 1974); Nowlin v. Professional Auto Sales, Inc., No. 73-1348 and Mayhugh v. Bill Allen Chevrolet Co., No. 73-1450, 496 F.2d 16 (8th Cir., filed April 25, 1974); Shirley v. State National Bank, No. 73-1783, 493 F.2d 739 (2nd Cir., filed Feb. 14, 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973). The order of the district court of November 8, 1973 granting the declaratory relief specified in the first sentence" }, { "docid": "7675067", "title": "", "text": "MEMORANDUM OPINION AND ORDER VanARTSDALEN, District Judge. Plaintiffs, Betty and Bernard Smith, instituted this civil rights action under Section 1983, Title 42 U.S.C., to enjoin defendant, Bekins Moving and Storage Co., from conducting a warehouseman’s sale of plaintiffs’ stored possessions pursuant to Section 7-210 of the Pennsylvania Uniform Commercial Code. Pa. Stat. tit. 12A § 7-210. Plaintiffs contend that this provision is unconstitutional because it fails to comply with the basic procedural due process requirements enunciated in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Under Section 7-210, a warehouseman may enforce his lien on stored property to satisfy unpaid charges by selling the property at a public or private sale. Although Section 7-210 requires notice to all persons known to claim an interest in the goods, no provision is made for a hearing prior to sale, judicial or otherwise. On this ground, plaintiffs argue that the statute is constitutionally deficient. After a hearing on May 31, 1974, a preliminary injunction was entered staying the scheduled Bekins sale. In reaching the conclusion that the plaintiffs would probably succeed on the ultimate merits of the case, reliance was based in part on the decision of Judge Bechtle in Gibbs v. Titelman, 369 F.Supp. 38 (E.D.Pa.1973), which held that certain state statutory provisions authorizing creditors to summarily repossess and sell property subject to a valid security agreement without prior notice and opportunity for a hearing violated due process. On appeal, the Third Circuit reversed the Gibbs decision in an opinion filed August 1, 1974. Gibbs v. Titelman, 502 F.2d 1107 (3d Cir. 1974). In. that opinion, the Third Circuit did not reach the clue process issue holding that the actions of the creditors under the challenged statutes were not actions “under color of state law”. Therefore, no cause of action under Section 1983 of the Civil Rights Act was alleged. Citing Gibbs, defendant Bekins has moved to dismiss the instant complaint for failure to state a claim upon which relief can be granted on the ground that it fails to satisfy one of the elemental requirements of" }, { "docid": "13974927", "title": "", "text": "that we therefore lack subject matter jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. They refer us to the dismissal of a similar suit, brought by this appellant against certain attorneys, police officers, a New Hampshire bank and its officers, and the Attorney General of New Hampshire, Dieffenbach v. Buckley, 464 F.Supp. 670 (D.N.H.1979). That suit, challenging the power of sale mortgage foreclosure procedures of New Hampshire, was dismissed by the District Court for the District of New Hampshire for failure to show state action, apparently because the New Hampshire mortgage statutes do not create the power of sale foreclosure but merely serve to regulate and standardize an otherwise recognized practice. The New Hampshire district court cited a number of cases, including Charmicor, Inc. v. Deaner, 572 F.2d 694 (9th Cir. 1978), and Roberts v. Cameron-Brown Co., 556 F.2d 356 (5th Cir. 1977), which have held that such a non-judicial foreclosure under a private power of sale does not constitute state action. Of course, the district court also referred to Flagg Brothers v. Brooks, 436 U.S. 149, 98 S.Ct. 1729 (1978), the recent Supreme Court case interpreting the state action requirement in the context of the New York warehouseman’s lien. Flagg Brothers held that a warehouseman’s proposed sale of goods entrusted to him for storage pursuant to his lien over the goods, as authorized by the New York Uniform Commercial Code, was not state action. The Court distinguished North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), all imposing procedural restrictions on creditors’ remedies, by pointing to the failure in Flagg Brothers to allege the participation of any public officials in the proposed sale. 436 U.S. at 157, 160 n.10, 98 S.Ct. at 1734. Given “[t]his total absence of overt official involvement,” the Court reasoned, state action could be found only if the acts of private parties could fairly be" }, { "docid": "22997370", "title": "", "text": "at 432 n. 1), there was no indication in the case that any such agreement had been made. . 2 F. Pollock & F. Maitland, The History of English Law 574 (2d ed. 1899). . See Pollock, note 34, supra. . Accord, Pease v. Havelock National Bank, 351 F.Supp. 118, 122 (D.Neb.1972). It may also be argued that no debtor would reasonably think that in repossessing the unpaid-for vehicle, the creditor was acting as an arm of the state. Cf. Grafton v. Brooklyn Law School, 478 F.2d 1137, 1143 (2d Cir. 1973). BYRNE, District Judge (dissenting). Both Adams and Hampton sought relief under 42 U.S.C. § 1983 on the grounds that the creditor banks acted “under color of law” and deprived them of “due process of law” by repossessing their automobiles pursuant to Cal.Comm.C. § 9503 and selling those vehicles pursuant to Cal.Comm.C. § 9504. The majority opinion holds in favor of the creditor banks on the “under color of law” issue and apparently considered it unnecessary to discuss the “due process of law” issue. It is my view that the debtors should prevail on both issues. Regarding the “due process of law” issue, even the creditors appear to concede that, if they did act “under color of law,” the debtors were deprived of due process of law because no judicial hearing was conducted prior to the summary self-help procedures utilized. Undoubtedly, the creditors’ apparent concession on the “due process of law” issue is compelled by the recent case of Fuentes v. Shevin, 407 U.S. 67, 86-87, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) where the Supreme Court stated: “The appellants who signed conditional sales contracts lacked full legal title to the replevied goods. The Fourteenth Amendment’s protection of ‘property,’ however, has never been interpreted to safeguard' only the rights of undisputed ownership. Rather, it has been read broadly to extend protection to ‘any significant property interest,’ Boddie v. Connecticut, 401 U.S. 371, at 379 [91 S.Ct. 780, 28 L.Ed.2d 113], including statutory entitlements. See Bell v. Burson, 402 U.S. 535, at 539, 91 S.Ct. 1586, 29 L.Ed.2d 90; Goldberg" }, { "docid": "6169739", "title": "", "text": "without a breach of the peace, a retaking must be effected by legal process. See Mauro v. General Motors Acceptance Corp., 164 Misc.2d 871, 875-76, 626 N.Y.S.2d 374 (N.Y.Sup.Ct.1995) (noting that construction of § 9-503 is strict). The Barretts contend that Officer Durant’s involvement in the repossession converted the private repossession into state action. They assert that even assuming Harwood had a right to repossess the truck under § 9-503, the right to do so without using judicial process ended when they objected to the repossession, thereby disturbing the peace. They maintain that after the breach occurred, Officer Durant had a duty to advise Smith to cease repos sessing their truck and to proceed through legal action. According to appellants, Officer Durant aided in the unlawful repossession through his conduct and threat of arrest. Thus, the Barretts declare that these defendants acting under color of state law violated their constitutional right to due process. The district court’s order granting summary judgment in favor of all the defendants is reviewed de novo, keeping in mind the New York law regarding self-help repossession. That relief is appropriate only if, in resolving all ambiguities and drawing all inferences in favor of the non-movant (here plaintiffs), see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), there is no genuine issue of material fact and “the moving party is entitled to a judgment as a matter of law,” Fed.R.Civ.P. 56(c). I Due Process Right The Barretts have a constitutional right “not to have property in which [they] enjoyed a lawful possessory interest [repossessed] by state action in violation of the constitution.” Haverstick Enters., Inc. v. Financial Fed. Credit, Inc., 32 F.3d 989, 994 (6th Cir.1994). The Constitution requires notice and a prior hearing before a state can assist a secured creditor in the repossession of a debtor’s property. See Fuentes v. Shevin, 407 U.S. 67, 80, 96-97, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 340-42, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In Fuentes v. Shevin, the Supreme Court" }, { "docid": "22997369", "title": "", "text": "approach are Magro v. Lentini Brothers Moving & Storage Co., 338 F.Supp. 464 (E.D.N.Y.1971); and Klim v. Jones, 315 F.Supp. 109 (N.D.Cal.1970) (Judge Levin also speaks to the issue of jurisdiction under § 1331.) See also B. Clark & J. Landers, Sniadach, Fuentes and Beyond : The Creditor Meets the Constitution, 59 Va.L.Rev. 355, 377 (1973). Subsequent history of Hall appears at 468 F.2d 845 (5th Cir. 1972). . In Adams this argument regarding the creditor’s ownership of the property cannot be made. As stated, supra, Adams borrowed money and secured the loan by a note and security agreement giving the secured party the right to take possession. In Hampton the purchase was financed by a jjurchase contract payable in installments. Hall, on its facts, does not present such a distinction. The issue in Hall was the legality of a seizure resting solely upon a landlord’s lien statute. While the statute in Hall provided that nothing therein ‘shall prejudice’ any contractual agreements between lessor and lessee concerning the subject matter of the statute (430 F.2d at 432 n. 1), there was no indication in the case that any such agreement had been made. . 2 F. Pollock & F. Maitland, The History of English Law 574 (2d ed. 1899). . See Pollock, note 34, supra. . Accord, Pease v. Havelock National Bank, 351 F.Supp. 118, 122 (D.Neb.1972). It may also be argued that no debtor would reasonably think that in repossessing the unpaid-for vehicle, the creditor was acting as an arm of the state. Cf. Grafton v. Brooklyn Law School, 478 F.2d 1137, 1143 (2d Cir. 1973). BYRNE, District Judge (dissenting). Both Adams and Hampton sought relief under 42 U.S.C. § 1983 on the grounds that the creditor banks acted “under color of law” and deprived them of “due process of law” by repossessing their automobiles pursuant to Cal.Comm.C. § 9503 and selling those vehicles pursuant to Cal.Comm.C. § 9504. The majority opinion holds in favor of the creditor banks on the “under color of law” issue and apparently considered it unnecessary to discuss the “due process of law” issue." }, { "docid": "18288325", "title": "", "text": "due and unpaid by the tenant thereof and grants to the operator the right to enforce that lien' by peremptory seizure and retention of such property until the amount of unpaid rent is paid. Art. 5238a makes no provision for any kind of prior hearing. Subsequent to the taking of Hall’s television set, defendants-appellees notified Hall that her television set was being held for the past due rent owed and that it would be returned upon her paying the arrearage. Appellant Hall has never paid nor tendered payment of the rent due and defendants-appellees have indicated they are ready and willing to return the television set to Hall at the time such payment is made. Hall brought a class action under Rule 23, F.R.Civ.P. on behalf of herself and all other persons similarly situated, challenging the constitutionality of this statutory authority under the Due Process Clause of the Fourteenth Amendment of the U. S. Constitution and for appropriate injunctive relief against defendantsappellees. The district court dismissed the action as jurisdictionally premature, but we reversed and' found that Title 28, U.S.C. Section 1343, provided the requisite jurisdiction and that plaintiffs-appellants stated a claim for which relief could be granted under Title 42, U.S.C., Section 1983. Hall, et al. v. Garson, et al., 5 Cir. 1970, 430 F.2d 430. On remand, the district court denied the injunctive relief requested and dismissed the complaint by an unreported memorandum decision. Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, was decided by the Supreme Court subsequent to the instant appeal, but before oral argument. That case was a logical extension of the constitutional principles applied in Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, and Sniadach v. Family Finance Corp., 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349. On the authority of Fuentes we hold that Tex.Rev.Stat.Ann. Art. 5238a works “a deprivation of property without due process of law insofar as [it denies] the right to a prior opportunity to be heard before chattels are taken from their possessor”. 407 U.S. at 96," }, { "docid": "6294884", "title": "", "text": "indicates that there was no hearing to determine either contractual obligations or the rights to possession. Turner contends that the Tennessee statute is unconstitutional and that it authorizes a deprivation of property without due process. He principally relies on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), which held that notice and a hearing are required before the execution of a prejudgment writ of replevin. According to the appellant, the Tennessee statute allows a creditor to circumvent the requirements of notice and hearing and yet replevy his property. He contends that although the case ostensibly involves private conduct, the presence of state action is indicated by the fact that the state has intervened, authorized and encouraged repossession by secured creditors by conferring upon them special powers and exemptions from legal requirements placed on all others. Appellant also argues that the Tennessee statute, similar to the replevin statutes in Fuentes, deprives the debtor of his rights to notice and an opportunity to be heard. The waiver provision contained in the contract does not, appellant contends, necessarily exclude the requirements of notice and a judicial hearing on the issue of the waiver prior to the repossession. The waiver provision allows the creditor to take possession upon default. Before we consider the constitutional dimensions of the matter before us, we must first examine the key question of jurisdictional requisites. The concept of state action as required by the Fourteenth Amendment has been found to be virtually synonymous with the “under color of state law” requirement of § 1983. United States v. Price, 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, 161 (6th Cir. 1973). But cf., Adickes v. S. H. Kress & Co., 398 U.S. 144, 211, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring and dissenting). Appellant would have us hold that the self-help repossession which took place upon the default on a private contract providing for such repossession is an act under color of state law and thus constitutes" }, { "docid": "8427621", "title": "", "text": "property in a foreclosure sale on August 22, 2000. Apao immediately filed her complaint and styled it a class action. The district court granted the defendant-appellee’s motion to dismiss in March of 2001 and entered final judgment in June of 2001. This appeal followed. The Fourteenth Amendment provides: “No state shall ... deprive any person of life, liberty, or property, without due process of law.” It thus shields citizens from unlawful governmental actions, but does not affect conduct by private entities. In Shelley v. Kraemer, 334 U.S. 1, 13-14, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), the Supreme Court held that what would otherwise be private conduct, i.e., placing a racially restrictive covenant in a deed, can violate the Fourteenth Amendment when state action in the form of a court order is sought to enforce its restrictive provisions. Similarly, in cases involving foreclosures or seizures of property to satisfy a debt, the Supreme Court has held that the procedures implicate the Fourteenth Amendment only where there is at least some direct state involvement in the execution of the foreclosure or seizure. See Fuentes v. Shevin, 407 U.S. 67, 70-71, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (clerk of court made out writ of replevin authorizing seizure of property by sheriff); Sniadach v. Family Fin. Corp., 395 U.S. 337, 338-39, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (clerk of court issued summons at request of creditor’s counsel, setting in motion garnishment of wages). More recently, in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), the Court found state action where a creditor’s ex parte petition for a writ of prejudgment attachment was executed by the county sheriff, sequestering the property pending adjudication of the claim. Id. at 924-25, 941-42, 102 S.Ct. 2744. In contrast, in a case materially similar to this one, when a creditor enforced a lien through a purely private, non-judicial sale, the Supreme Court held that there was no state action, even though the lien was authorized by the state’s legislative enactment of the Uniform Commercial Code. See Flagg Bros., Inc." }, { "docid": "18288326", "title": "", "text": "found that Title 28, U.S.C. Section 1343, provided the requisite jurisdiction and that plaintiffs-appellants stated a claim for which relief could be granted under Title 42, U.S.C., Section 1983. Hall, et al. v. Garson, et al., 5 Cir. 1970, 430 F.2d 430. On remand, the district court denied the injunctive relief requested and dismissed the complaint by an unreported memorandum decision. Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, was decided by the Supreme Court subsequent to the instant appeal, but before oral argument. That case was a logical extension of the constitutional principles applied in Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, and Sniadach v. Family Finance Corp., 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349. On the authority of Fuentes we hold that Tex.Rev.Stat.Ann. Art. 5238a works “a deprivation of property without due process of law insofar as [it denies] the right to a prior opportunity to be heard before chattels are taken from their possessor”. 407 U.S. at 96, 92 S.Ct. at 2002, 32 L.Ed.2d at 579. In Fuentes the Supreme Court invalidated Florida and Pennsylvania statutes which provided for the summary seizure of goods in a person’s possession under a writ of replevin to be issued upon the ex parte application of any other person who claimed a right to them and posted a security bond. The Court found the constitutional infirmity to be the complete absence of prior notice and opportunity to be heard to the party in possession of the property, and held that such violation of due process could be cured only by providing adequate safeguards at a meaningful time and in a meaningful manner so as to obviate the danger of an unfair or mistaken deprivation of property. Here we have no such protections. Art. 5238a clothes the apartment operator with clear statutory authority to enter into another’s home and seize property contained therein. This makes his actions those of the State. Screws v. United States, 1945, 325 U.S. 91, 110-111, 65 S.Ct. 1031, 1039-1040, 89 L.Ed. 1495, 1507-1508;" }, { "docid": "22997355", "title": "", "text": "vehicle conditional sales contracts, Civil Code § 2982; (c) for the right to sell the repossessed vehicle and the requirement of giving notice before resale, Civil Code § 2983.2; (d) for licensing of re-possessors, Business and Professions Code §§ 7520, 7521; (e) for clearing title to the repossessed vehicle, Vehicle Code §§ 5600, 5601, 5602, and 9561. . See, e. g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968); Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). But cf. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972); Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 11972); and Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970). . This factor is what distinguishes these cases from Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), because there in enforcing the creditor’s writ of replevin, issued summarily by a court clerk, a state officer seized the repossessed goods. Some of the evils are still present —no state official participates in the decision to repossess, nor does one evaluate the need for immediate seizure, nor does one review the basis for the claim to repossession —but because control over state power has not been abdicated, the State here does not act in the dark. Cf. Fuentes, supra, 407 U.S. at 93, 92 S.Ct. 1983. . California did not enact the Uniform Conditional Sales Act and the courts in this area were dependent upon case law and terms of the agreement. Upon the" } ]

[ { "docid": "23676484", "title": "", "text": "surrounding assumption or rejection of non-residential leases and to decrease attendant vacancy problems by requiring prompt action by debtors who file for bankruptcy relief. “Upon service of a motion to assume, this uncertainty is ended and therefore Congress’ intention was fulfilled.” In re Victoria Station, 69 B.R. 110, 111 (9th Cir. BAP 1986). Debtor here ended that uncertainty when he communicated his intent to assume the 1984 Lease in his February 21, 1985 plan. Lessor, Calflor Grove, N.V., received notice of that plan’s filing on March 12, 1985, 29 days after the debtor’s petition was filed. Debtor’s motion to assume the lease was “made” when served on Calflor. The liberal policies underlying Chapter 13 relief do not require a separate, formal motion to assume a lease where the debtor communicates an intent to assume pursuant to § 1332(b)(7) under the terms of a plan filed within the § 365(d)(4) time period. Calflor Grove, N.V. did not object to the lease assumption by objecting to the plan’s confirmation. However, the trustee and two secured creditors did object. Debtor’s plan was amended July 12, 1985 (to provide for 100% payments) and was confirmed on August 19, 1985. Although assumption of a lease under § 365 requires the express approval of the court, In re Harris Management Co., Inc., 791 F.2d 1412 at 1414-15 (9th Cir.1986), it is not necessary to obtain that court approval within the 60-day time limit of § 365(d)(4). In re Treat Fitness Center, Inc., 60 B.R. 878, 880 (9th Cir. BAP 1986), cited with approval In re By-Rite Distributing, Inc., 55 B.R. 740 (D.Utah 1985), which reversed In re By-Rite Distributing, Inc., 47 B.R. 660 (Bankr.Utah 1985). Consequently, when the court confirmed the debtor’s plan on August 19, 1985, the court approved the debtor’s lease assumption as required by § 365(a). Lease assumption is now res judica-ta. As stated by the Bankruptcy Appellate Panel in the case of In re Evans, 30 B.R. 530 (9th Cir. BAP 1983): Section 1327 is clear. The provisions of a confirmed plan bind each creditor whether or not such creditor has objected" } ]

[ { "docid": "23256696", "title": "", "text": "favored at the expense of other creditors, but the debtor’s prospects for reorganization are severely crippled, since the estate is deprived of one of its prime assets — two highly favorable leases. Because the bankruptcy court erred in requiring By-Rite to obtain court approval of its decision to assume the leases within sixty days of filing its petition, the bankruptcy court’s decision is REVERSED, and this matter is REMANDED to that court for further proceedings consistent with this opinion. IT IS SO ORDERED. . Originally, five leases were involved in this case. However, three of the five have been renegotiated and are not at issue in this appeal. . Since the bankruptcy court’s ruling, the case has been converted to a chapter 7 proceeding, and a trustee has been appointed. .Section 1107 of the Code gives a debtor in possession essentially all of the powers of a trustee. Any reference in this opinion to a chapter 11 trustee also includes a debtor in possession, such as By-Rite. . The appellant disputes the premise that court approval of assumption is always required under the Code, citing United States v. Midwest Serv. & Supply Co. (In re Midwest Serv. & Supply Co.), 44 B.R. 262 (D.Utah 1983). For purposes of this appeal, however, this court will assume that it is. . Cases under the old Bankruptcy Act allowed a trustee in some circumstances to assume an unexpired lease or an executory contract by implication, that is, by conduct short of filing a motion to assume. See, e.g., Vilas & Sommer, Inc. v. Mahony (In re Steelship Corp.), 576 F.2d 128, 132-33 (8th Cir.1978) (assumption implied from the trustee’s knowledge that the other party to the contract was performing in reliance on the contract); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968) (oral notice to the other party of the trustee’s intent to assume was sufficient); In re McCormick Lumber & Mfg. Corp., 144 F.Supp. 804, 806 (D.Or.1956) (the trustee’s retained possession of machinery sold under a conditional sales contract constituted assumption of the contract). Courts split over whether a trustee" }, { "docid": "18731031", "title": "", "text": "or assign” an unexpired lease is governed by Rule 9014, and subsection (c) of Rule 6006 provides for hearing and notice. Rule 9014 sets out motion and notice requirements. As Judge Radoyevich observed, it is unclear whether assumption is by motion and hearing before the court or the Trustee may assume the lease by less formal acts and then gain court approval. Judge Radoyevich did not decide that question, but held that the Trustee had not acted to assume the lease with a clearly manifested unequivocal intent. This Court concludes that the Trustee can assume the unexpired lease by action less formal than the Rule 9014 provision for a motion for court approval. In construing the nearly identical language of Section 70(b) of the earlier Bankruptcy Act, Courts of Appeals for two circuits held that informal acts of assumption, including oral notice, are sufficient. Brown v. Presbytarian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); Nostromo v. Fahrenkrog, 388 F.2d 82 (8th Cir.1968). This approach to the assumption provision has been specifically adopted under the similar provision of the present Bankruptcy Code. In re Avery Arnold Construction, Inc., 11 B.R. 34 (Bankr.S.D.Fla.1981). Moreover, while less than formal acts of assumption do not obviate the need for court approval under the former Bankruptcy Act and Bankruptcy Code, they do serve to give notice and preclude deeming the lease rejected by inaction under 11 U.S.C. Section 365(d)(1). II. Judge Radoyevich found that there had been only equivocal acts and expressions of uncertainty as to the value and validity of the lease by the Trustee in proceedings before the Bankruptcy Court. Therefore, he reasoned, there was no basis for the contention of assumption of the lease by act or oral notice. Were the circumstances of this case different this Court would agree with Judge Radoyevich’s conclusion. The sum of the odd twists and turns in the facts and proceedings in this case, however, make Judge Radoyevich’s result more than a little troubling. This Court is particularly struck by the way matters rapidly devolved from unclear to confused over the course of five hearings," }, { "docid": "10241066", "title": "", "text": "is possible. For the reasons that follow, however, this Court finds the “assumption-by-conduct” argument to be flawed and fraught with potential for the precise type of confusion which Congress sought to prevent with the passage of § 365 of the Bankruptcy Code. Section 365, as enacted in 1978 and amended in 1984, represents a significant departure from its predecessor § 70(b) of the Bankruptcy Act, 11 U.S.C. § 110(b) (repealed). Under § 70(b) the courts disagreed on the question of whether assumption or rejection of an executory contract required court approval. Former Bankruptcy Rule 607 stated that “[w]henever practicable, the trustee shall obtain approval of the Court before he assumes [an executory contract].” The vagueness of this language resulted in some courts holding that informal acts of the debtor-in-possession without court approval could constitute assumption. In re By-Rite Distributing, Inc., 47 B.R. 660 (Bankr.D.Utah), rev’d on other grounds, 55 B.R. 740 (Bankr.N.D.Utah 1985). See Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82 (8th Cir.1968); Brown v. Presbyterian Ministers Fund, 484 F.2d 998 (3rd Cir.1973). “An assumption [could] be shown by word or by deed consistent with the conclusion that the trustee intended to assume.” In re Steelship Corp. 576 F.2d 128, 132 (8th Cir.1978). Even under the Act, however, the better rule was that court approval was necessary before an assumption or rejection could be accomplished. See In re American National Trust, 426 F.2d 1059 (7th Cir.1970); Texas Importing Co. v. Banco Popular de Puerto Rico, 360 F.2d 582 (5th Cir.1966). See In re Kelly Lyn Franchise Co., 26 B.R. 441 (Bankr.M.D.Tenn.1983) (for a comparison of the assumption/rejection procedure under § 70(b) of the Act and under § 365 of the Code). In a well-reasoned opinion decided under the Code, Judge Lundin rejected the notion that assumption could be implied from the debtor’s conduct. In In re Kelly Lyn Franchise Co., supra, 26 B.R. at 444-445 he writes: The court rejects debtor’s contention that the assumption of an unexpired lease can be accomplished by implication_ Assumption or rejection by implication or by action leads inevitably to the kind of confusion and" }, { "docid": "18731030", "title": "", "text": "appeal to this Court is whether the Trustee can be held to have rejected or assumed the unexpired lease for the Broadway premises under the facts presented. I. The Bankruptcy Code provides that the trustee, subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor. 11 U.S.C. Section 365(a). It specifies that under Chapter 7, if the trustee does not assume or reject an executory contract or unexpired lease of the debtor within 60 days after the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such contract or lease is deemed rejected. 11 U.S.C. Section 365(d)(1). As Judge Ra-doyevich pointed out in his Decision of January 31, 1984, the Bankruptcy Code does not specify any particular manner in which a lease is assumed or rejected, except to say that it is subject to court approval. Nor do the Bankruptcy Rules provide greater guidance. Rule 6006(a) of the Bankruptcy Rules declares that a proceeding “to assume, reject or assign” an unexpired lease is governed by Rule 9014, and subsection (c) of Rule 6006 provides for hearing and notice. Rule 9014 sets out motion and notice requirements. As Judge Radoyevich observed, it is unclear whether assumption is by motion and hearing before the court or the Trustee may assume the lease by less formal acts and then gain court approval. Judge Radoyevich did not decide that question, but held that the Trustee had not acted to assume the lease with a clearly manifested unequivocal intent. This Court concludes that the Trustee can assume the unexpired lease by action less formal than the Rule 9014 provision for a motion for court approval. In construing the nearly identical language of Section 70(b) of the earlier Bankruptcy Act, Courts of Appeals for two circuits held that informal acts of assumption, including oral notice, are sufficient. Brown v. Presbytarian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); Nostromo v. Fahrenkrog, 388 F.2d 82 (8th Cir.1968). This approach to the assumption provision has been specifically adopted under the" }, { "docid": "3582618", "title": "", "text": "at 365-30 (15th ed. 1989) (“In a chapter 11 case rejection can only come about upon order of the court under section 365(a) or by virtue of the provisions of a confirmed plan. As long as rejection is not ordered the contract continues in existence”). The case In re National Oil Co., 80 B.R. 525 (Bankr.D.Colo.1987), submitted by Kan-dist, is particularly persuasive in the instant matter. In National Oil the debtor asserted that two commercial leases were rejected when the debtor sent a letter to the lessor which unequivocally delineated rejection. The debtor never filed a motion seeking approval of the rejection of the leases. The court found that because the debtor did not apply to the court for approval to reject the leases they expired 60 days after the petition was filed, by operation of section 365(d)(4). Id. at 526. The court in Treat Fitness Center, Inc., v. Rainbow Investment (In re Treat Fitness Center, Inc.), 60 B.R. 878 (Bankr. 9th Cir. 1986), at p. 879, discussed the logic of court approval as a pre-condition to any assumption or rejection of an unexpired lease: 11 U.S.C. § 365 specifically states that the trustee, subject to court approval, may assume or reject an executory contract. Bankruptcy Rule 6006 states that a proceeding to assume or reject an exec-utory contract or unexpired lease is governed by Bankruptcy Rule 9014 which in turn states that relief shall be requested by motion and reasonable notice and opportunity for a hearing shall be afforded to the opposing party. To not follow these rather explicit rules would be to lead us back into the morass of attempting to judge the meaning and import of the conduct and conversations of the parties. An application of the facts of the instant matter to the unequivocal language of section 365(a), as well as the wealth of case law interpreting said section, establishes to this Court that the rejection of the Sublease occurred on December 13, 1988, upon this Court’s order approving the rejection. Although the Rejection Letter sent to Kandist may be described as a clear communication of" }, { "docid": "22920780", "title": "", "text": "or unexpired lease].” The absence of a generally recognized procedure for assumption under the former Bankruptcy Act and Rules of Bankruptcy Procedure resulted in some courts holding that informal acts of the trustee without court approval could constitute assumption. “An assumption [could] be shown by word or by deed consistent with the conclusion that the trustee intend ed to assume.” In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1982). See also Allan Construction Co., Inc. v. United States, 646 F.2d 487, 493, 227 Ct.Cl. 193 (1981); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3d Cir.1973); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968); In re For gee Metal Products, 229 F.2d 799, 801-02 (3d Cir.1956); In re Texas & New Orleans Railroad Co. v. Phillips, 196 F.2d 692, 695 (5th Cir.1952); In re Ro-An Food Enterprises, Ltd., 41 B.R. 416 (E.D.N.Y.1984); In re Electrospace Corp., 39 B.R. 632, 641 & n.13 (S.D.N.Y.1984); In re Hawaii Daiichi-Kanko, Inc., 24 B.R. 163, 166 (Bkrtcy.D.Haw.1982); In re Sapolin Paints, Inc., 20 B.R. 497, 507 (Bkrtcy.E.D.N.Y.1982); In re Avery Arnold Construction, Inc., 11 B.R. 34, 35 (Bkrtcy.S.D.Fla.1981). This view was held inapplicable to cases under Section 365 in a well-reasoned opinion by the Bankruptcy Court for the Middle District of Tennessee. In In re Kelly Lyn Franchise Co., supra, 26 B.R. at 444-45, Judge Lundin writes: The court rejects debtor’s contention that the assumption of an unexpired lease can be accomplished by implication. Debtor relies upon cases decided under the old Bankruptcy Act which held that because “the Act does not provide any formal manner in which the trustee shall make the assumption, ... as well as by formal written declaration.” In re Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968). See also In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); In re McCormick Lumber Manufacturing Corp., 144 F.Supp. 804 (D.Or.1956). Debtor argues that its actions, specifically its tendering of October rent, manifested an actual assumption of the lease. The court finds, however, that" }, { "docid": "3582619", "title": "", "text": "pre-condition to any assumption or rejection of an unexpired lease: 11 U.S.C. § 365 specifically states that the trustee, subject to court approval, may assume or reject an executory contract. Bankruptcy Rule 6006 states that a proceeding to assume or reject an exec-utory contract or unexpired lease is governed by Bankruptcy Rule 9014 which in turn states that relief shall be requested by motion and reasonable notice and opportunity for a hearing shall be afforded to the opposing party. To not follow these rather explicit rules would be to lead us back into the morass of attempting to judge the meaning and import of the conduct and conversations of the parties. An application of the facts of the instant matter to the unequivocal language of section 365(a), as well as the wealth of case law interpreting said section, establishes to this Court that the rejection of the Sublease occurred on December 13, 1988, upon this Court’s order approving the rejection. Although the Rejection Letter sent to Kandist may be described as a clear communication of Revco’s intention to reject the Sublease, this Court will not adopt the position of reviewing Revco’s conduct to attempt to judge the meaning of such conduct whenever the issue of an informal rejection or assumption of a lease is raised. Indeed, section 365(a) was drafted to remedy this problem. In re A.H. Robins Co., Inc., 68 B.R. 705, 708, 710 (Bankr.E.D.Va. 1986). The court in Treat Fitness Center stated on p. 879: We read 11 U.S.C. § 365 together with Bankruptcy Rule 6006 to require that the debtor or trustee file a formal motion to assume, thus overruling cases under the former Bankruptcy Act that required courts to judge whether words or deeds, often ambiguous at best, constituted an assumption or rejection of a lease or executory contract. See, also, Kelly Lyn, supra, at p. 444, wherein the debtor, relying on case law under the old Bankruptcy Act, contended that assumption of an unexpired lease can be accomplished by implication. The court rejected debtor’s contention and stated “even under the Act, the majority rule and" }, { "docid": "1157066", "title": "", "text": "assume the lease to the landlord. Second, if the actions of the Debtor did not constitute an effective assumption, Village East has either waived its right to a forfeiture or in any event, it is estopped to assert a forfeiture of the lease by its conduct. Third, it is the contention of the Debtor that based on § 105 of the Bankruptcy Code, this Court should use its equitable powers and permit the Debtor to seek an assumption of the lease. Fourth, in any event, so contends the Debtor, that the Debtor and Village East entered into a valid and enforceable contract after the expiration of the 60-day period whereby it was agreed by the parties to allow the Debtor to assume the lease or in any event, even if the lease was terminated, to renew the terminated lease for an additional term. Under the Bankruptcy Act, the overwhelming weight of authority was that the act of assumption by a trustee could be other than the filing of a formal written motion. In re Huntington Limited, 654 F.2d 578, 587 (9th Cir.1981); In re Steelship Corp., 576 F.2d 128, 132-33 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998 (3rd Cir.1973); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82 (8th Cir.1968); In re Forgee Metal Products, Inc., 229 F.2d 799, 801 (3rd Cir.1956). One commentator dealing with this subject stated: Assumption of a contract is an act requiring notification of the party concerned. The trustee cannot assume merely in his own mind. He must notify the other party.... No particular form of notification is provided. A written or even an oral notice should be deemed sufficient. 4B Collier on Bankruptcy, If 70.42[6], at 533 (14th ed. 1976). The subject of executory contracts and unexpired leases is dealt with by § 365 of the Bankruptcy Code enacted by the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549. While this Section adopted almost verbatim the language of § 70(b) of the Bankruptcy Act of 1898 and provided a 60-day period for the trustee to assume an executory contract or" }, { "docid": "22920781", "title": "", "text": "507 (Bkrtcy.E.D.N.Y.1982); In re Avery Arnold Construction, Inc., 11 B.R. 34, 35 (Bkrtcy.S.D.Fla.1981). This view was held inapplicable to cases under Section 365 in a well-reasoned opinion by the Bankruptcy Court for the Middle District of Tennessee. In In re Kelly Lyn Franchise Co., supra, 26 B.R. at 444-45, Judge Lundin writes: The court rejects debtor’s contention that the assumption of an unexpired lease can be accomplished by implication. Debtor relies upon cases decided under the old Bankruptcy Act which held that because “the Act does not provide any formal manner in which the trustee shall make the assumption, ... as well as by formal written declaration.” In re Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968). See also In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); In re McCormick Lumber Manufacturing Corp., 144 F.Supp. 804 (D.Or.1956). Debtor argues that its actions, specifically its tendering of October rent, manifested an actual assumption of the lease. The court finds, however, that even under the Act, the majority rule and the better rule was that judicial approval was required before allowing the assumption or rejection of an unexpired lease. Local Joint Executive Board, AFL-CIO v. Hotel Circle, Inc., 419 F.Supp. 778 [(D.C.Cal.1976)] aff'd 613 F.2d 210 (9th Cir.1980). See also Bradshaw v. Loveless (In re American National Trust), 426 F.2d 1059, 1064 (7th Cir.1970); Texas Importing Co. v. Banco Popular de Puerto Rico, 360 F.2d 582 (5th Cir.1966). Assumption or rejection by implication or by action leads inevitably to the kind of confusion and uncertainty exemplified by this case. Moreover, the explicit requirement of court approval is now clear under the language of § 365(a) of the Code. s}c sfc sk sk sk sk Section 365(a) makes clear that an assumption of an executory contract “can only be effected through an express order of the court.” 2 L.King, COLLIER ON BANKRUPTCY § 365.03 at 365-21 (15th ed.1982). As the court correctly stated in Frank C. Videon, Inc. v. Marpie Publishing Co., 20 B.R. 933 (Bkrtcy.E.D.Pa.1982); “[a]ny assumption" }, { "docid": "10241065", "title": "", "text": "contends that a motion under § 365(d)(2) is not only detrimental to its argument but is also inappropriate at this juncture since, except for obtaining Court approval, Robins has taken all the steps which are necessary to assume the Insurance Contracts. Because of the unique circumstances of this case and because efficiency would not be served by a dismissal of this action for a procedural irregularity, the Court will entertain J & H’s motion. It is with an eye toward the likelihood that similar proceedings are certain to come before the Court and identical issues raised again that the Court feels compelled to address the “assumption-by-conduct” issue at the present time. While the Court is willing to look past procedural irregularities, it has grave doubts about the substantive validity of J & H’s motion. This Court is very much aware of the ambiguity surrounding the procedure for rejection or assumption of executory contracts and is well acquainted with the case law which reveals a split of authority on the question of whether assumption by conduct is possible. For the reasons that follow, however, this Court finds the “assumption-by-conduct” argument to be flawed and fraught with potential for the precise type of confusion which Congress sought to prevent with the passage of § 365 of the Bankruptcy Code. Section 365, as enacted in 1978 and amended in 1984, represents a significant departure from its predecessor § 70(b) of the Bankruptcy Act, 11 U.S.C. § 110(b) (repealed). Under § 70(b) the courts disagreed on the question of whether assumption or rejection of an executory contract required court approval. Former Bankruptcy Rule 607 stated that “[w]henever practicable, the trustee shall obtain approval of the Court before he assumes [an executory contract].” The vagueness of this language resulted in some courts holding that informal acts of the debtor-in-possession without court approval could constitute assumption. In re By-Rite Distributing, Inc., 47 B.R. 660 (Bankr.D.Utah), rev’d on other grounds, 55 B.R. 740 (Bankr.N.D.Utah 1985). See Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82 (8th Cir.1968); Brown v. Presbyterian Ministers Fund, 484 F.2d 998 (3rd Cir.1973). “An assumption" }, { "docid": "7041212", "title": "", "text": "rule on the motion and approve the assumption before the expiration of the time period. This decision was reversed by the District Court at 55 B.R. 740 (D.Utah 1985). District Judge Jenkins held that the timely filing of the motion to assume is sufficient to prevent automatic rejection; the court need not rule on the motion within the 60 day period. However, since the debtor in By-Rite had timely filed its motion, Judge Jenkins found it unnecessary to decide whether some action short of filing a motion may be sufficient; i.e., whether an executory contract or unexpired lease may be assumed by conduct or by implication. See id. at 742 n. 5. This issue has now been directly addressed and decided by the Bankruptcy Appellate Panel of the Ninth Circuit. In In re Treat Fitness Center, Inc., 60 B.R. 878 (Bankr. 9th Cir.1986), the Panel affirmed the Bankruptcy Court and unequivocally held that the assumption required by § 365(a) and (d)(4) cannot be accomplished by “word or deed” from which the court must infer an intent to assume. Rather, debtor or trustee must timely file a motion to assume as provided by Bankruptcy Rules 6006 and 9014. “To not follow these rather explicit rules would be to lead us back into the morass of attempting to judge the meaning and import of the conduct and conversations of the parties.” Id. at 879. The Ninth Circuit Court of Appeals has also recently held that assumption under § 365 requires express approval of the court. In re Harris Management Co., Inc., 791 F.2d 1412, 1414-15 (9th Cir.1986). This court follows its own prior decisions and the law of this Circuit in now holding that the debtor Spats did not assume the subject lease by its conduct. Waiver and Estoppel In Treat Fitness Center the debtor argued that its ongoing discussions with the landlord concerning assignment, sub-lease, or purchase of the lease should be deemed by the court to be conduct equivalent to assumption. Although the Panel rejected this line of reasoning, it did not address whether the lessor’s conduct may give rise" }, { "docid": "4642201", "title": "", "text": "the lease being deemed rejected by operation of law. As the 9th Circuit Bankruptcy Appellate Panel recently stated in In re Treat Fitness Center, 60 B.R. 878, 14 BCD 632 (9th Cir.BAP 1986): To not follow these rather explicit rules would be to lead us back into the morass of attempting to judge the meaning and import of the conduct and conversations of the parties. Id. at 879, 14 BCD at 633. That is precisely the type of situation this court is presently faced with as to what was said and meant by the debtor at the first meeting of creditors. Assumption by implication or action, rather than by filing a formal motion, “inevitably leads to the confusion and uncertainty exemplified by this case.” In re Kelly Lyn Franchise Co., Inc., 26 B.R. 441, 444 (Bankr.M.D.Tenn.1983). With respect to the lessor’s acceptance of rent payments, such actions cannot constitute a waiver of the lessor’s rights under section 365(d)(4) and section 365(d)(3) expressly so provides. See In re Las Margaritas, Inc., 54 B.R. 98, 100 (Bankr.D.Nev.1985); In re Chandel Enterprises, 64 B.R. 607, 15 BCD 147, 149 (Bankr.C.D.Cal.1986); In re Re-Trac Corporation, 59 B.R. 251, 255 (Bankr.D.Minn. 1986). Moreover, the lessor herein did nothing to cause the debtor to forego seeking court approval of its assumption through the filing of a motion to assume so as to be estopped from claiming the rejection and termination of the lease by operation of section 365(d)(4). In re Las Margaritas, Inc., supra, at 99-100. The court reiterates that, so long as a motion to assume is filed within 60 days, court approval can fall outside the 60-day period, particularly since formal ruling on the motion and entry of the court’s order, as well as any scheduling of a hearing with respect to section 365(b)(1), is outside the debtor’s control and therefore “should not operate to work a forfeiture of an otherwise assumable lease.” See Matter of Condominium Administrative Services, Inc., supra, 55 B.R. at 798. However, since the debtor in this case failed to file such a motion within the requisite time period, the" }, { "docid": "22920779", "title": "", "text": "on the reasonable value of the use and occupancy of the premises might have to await payment with other administrative claims at a later date. The new provisions require the debtor in possession or trustee to “timely perform” all obligations under the lease of nonresidential real property notwithstanding Section 503(b)(1). 11 U.S.C. § 365(d)(3). Moreover, upon rejection, the debtor in possession or trustee must “immediately surrender” the property to the lessor. 11 U.S.C. § 365(d)(4). What Constitutes Assumption Under Section 365(d)(4)? Section 365 of the Bankruptcy Code, as enacted in 1978 and amended in 1984, represents a significant departure from its predecessor, Section 70b of the Bankruptcy Act, 11 U.S.C. § 110(b) (repealed). Under Section 70b there was a split of authority on the question of whether assumption of an unexpired lease required court approval. In re Kelly Lyn Franchise Co., supra, 26 B.R. at 444. Former Bankruptcy Rule 607, which took effect on October 1, 1973, stated that “[wjhenever practicable, the trustee shall obtain approval of the court before he assumes [an executory contract or unexpired lease].” The absence of a generally recognized procedure for assumption under the former Bankruptcy Act and Rules of Bankruptcy Procedure resulted in some courts holding that informal acts of the trustee without court approval could constitute assumption. “An assumption [could] be shown by word or by deed consistent with the conclusion that the trustee intend ed to assume.” In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1982). See also Allan Construction Co., Inc. v. United States, 646 F.2d 487, 493, 227 Ct.Cl. 193 (1981); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3d Cir.1973); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968); In re For gee Metal Products, 229 F.2d 799, 801-02 (3d Cir.1956); In re Texas & New Orleans Railroad Co. v. Phillips, 196 F.2d 692, 695 (5th Cir.1952); In re Ro-An Food Enterprises, Ltd., 41 B.R. 416 (E.D.N.Y.1984); In re Electrospace Corp., 39 B.R. 632, 641 & n.13 (S.D.N.Y.1984); In re Hawaii Daiichi-Kanko, Inc., 24 B.R. 163, 166 (Bkrtcy.D.Haw.1982); In re Sapolin Paints, Inc., 20 B.R. 497," }, { "docid": "23679013", "title": "", "text": "that substantial improvements have been made in the premises, including the addition of $55,000 in general fixtures and $25,000 in gymnasium equipment. For reasons unexplained to the court, negotiations broke off on or about September 15, 1982. Sealy refused to accept the October rent payment which was tendered on October 5, the deadline set for assumption or rejection of the lease. Sealy advised the debtor that eviction proceedings were being initiated and the rent would be forwarded upon receiving instructions where it should be returned. On October 7, 1982, the debtor filed a motion seeking an extension of time within which to either assume or reject the lease. On October 15, 1982, Sealy filed suit in the First Judicial Circuit for Caddo Parrish, Louisiana seeking debtor’s eviction. The Louisiana court entered a judgment on October 27, 1982 declaring the lease terminated and the debtor evicted. The court rejects debtor’s contention that the assumption of an unexpired lease can be accomplished by implication. Debtor relies upon cases decided under the old Bankruptcy Act which held that because “the Act does not provide any formal manner in which the trustee shall make the assumption, ... the assumption of an executory contract may be shown by acts or oral statements ... as well as by formal written declaration.” Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968). See also In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); In re McCormick Lumber Manufacturing Corp., 144 F.Supp. 804 (D.Or.1956). Debtor argues that its actions, specifically its tendering of October rent, manifested an actual assumption of the lease. The court finds, however, that even under the Act, the majority rule and the better rule was that judicial approval was required before allowing the assumption or rejection of an unexpired lease. Local Joint Executive Board, AFL-CIO v. Hotel Circle, Inc., 419 F.Supp. 778 aff’d 613 F.2d 210 (9th Cir.1980). See also Bradshaw v. Loveless (In re American National Trust), 426 F.2d 1059, 1064 (7th Cir.1970); Texas Importing Co. v. Banco Popular de Puerto" }, { "docid": "23679014", "title": "", "text": "because “the Act does not provide any formal manner in which the trustee shall make the assumption, ... the assumption of an executory contract may be shown by acts or oral statements ... as well as by formal written declaration.” Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968). See also In re Steelship Corp., 576 F.2d 128, 132 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998, 1007 (3rd Cir.1973); In re McCormick Lumber Manufacturing Corp., 144 F.Supp. 804 (D.Or.1956). Debtor argues that its actions, specifically its tendering of October rent, manifested an actual assumption of the lease. The court finds, however, that even under the Act, the majority rule and the better rule was that judicial approval was required before allowing the assumption or rejection of an unexpired lease. Local Joint Executive Board, AFL-CIO v. Hotel Circle, Inc., 419 F.Supp. 778 aff’d 613 F.2d 210 (9th Cir.1980). See also Bradshaw v. Loveless (In re American National Trust), 426 F.2d 1059, 1064 (7th Cir.1970); Texas Importing Co. v. Banco Popular de Puerto Rico, 360 F.2d 582, 584 (5th Cir.1966); Siegel v. Schulte (In re Wil-low Cafeterias, Inc.), 111 F.2d 83 (2d Cir.1940). Assumption or rejection by implication or by action leads inevitably to the kind of confusion and uncertainty exemplified by this case. Moreover, the explicit requirement of court approval is now clear under the language of § 365(a) of the Code. 11 U.S.C.A. § 365(a) (West 1979) provides that “[ejxcept as provided in Sections 765 and 766 of this title and in subsections (b), (c), and (d) of this section, the trustee, subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.” (emphasis added.) Thus, any uncertainty which may have existed under the Act concerning the requirement for court approval of assumption or rejection is no longer a serious issue under 11 U.S.C.A. § 365 (West 1979). Section 365(a) makes clear that an assumption of an executory contract “can only be effected through an express order of the court.” 2 L. King, Collier on Bankruptcy ¶ 365.03 at" }, { "docid": "23256697", "title": "", "text": "approval of assumption is always required under the Code, citing United States v. Midwest Serv. & Supply Co. (In re Midwest Serv. & Supply Co.), 44 B.R. 262 (D.Utah 1983). For purposes of this appeal, however, this court will assume that it is. . Cases under the old Bankruptcy Act allowed a trustee in some circumstances to assume an unexpired lease or an executory contract by implication, that is, by conduct short of filing a motion to assume. See, e.g., Vilas & Sommer, Inc. v. Mahony (In re Steelship Corp.), 576 F.2d 128, 132-33 (8th Cir.1978) (assumption implied from the trustee’s knowledge that the other party to the contract was performing in reliance on the contract); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82, 84-85 (8th Cir.1968) (oral notice to the other party of the trustee’s intent to assume was sufficient); In re McCormick Lumber & Mfg. Corp., 144 F.Supp. 804, 806 (D.Or.1956) (the trustee’s retained possession of machinery sold under a conditional sales contract constituted assumption of the contract). Courts split over whether a trustee can still assume a lease or contract by implication under the Code. Comparte In re Ro-An Food Enters. Ltd., 41 B.R. 416, 418 (E.D.N.Y.1984) (recognizing informal assumptions) with Sealy Uptown v. Kelly Lyn Franchise Co. (In re Kelly Lyn Franchise Co.), 26 B.R. 441, 444 (Bankr.M.D.Tenn.) (rejecting the contention that assumption of an unexpired lease can be by implication), approved, 33 B.R. 112 (M.D.Tenn.1983). This court does not reach the question of what actions short of filing a motion to assume, if any, constitute an assumption of the lease, since By-Rite unequivocally expressed its decision to assume by filing a motion to assume. . On request of a party to the lease, the court could shorten the time for making the election. Id. . The situation was especially serious in shopping centers, where a vacancy in one store hurt all the other tenants because of the reduced customer traffic in the center as a whole. In fact, the ámendments to § 365 were meant primarily \"to remedy serious problems caused shopping centers and their solvent" }, { "docid": "4642200", "title": "", "text": "Bon Ton expressed its unambiguous and unconditional intention to assume its unexpired lease by filing a motion within 60 days, the court did not have to determine whether any action short of filing a motion to assume would suffice to unequivocally declare a trustee’s intention to assume. Although section 365(a) does not set forth the manner in which the trustee is required to seek court approval, Bankruptcy Rule 6006 states that a proceeding to assume or reject is governed by Bankruptcy Rule 9014. Bankruptcy Rule 9014, in turn, sets forth that the relief shall be requested by motion with reasonable notice and an opportunity for hearing afforded to the opposing party. Based on a reading of section 365 in its entirety, together with the language of Bankruptcy Rules 6006 and 9014, and the analysis of recent authority, this court concludes that the only method of declaring an intention to assume is by filing a formal motion to assume within 60 days of the order for relief and that failure to do so will result in the lease being deemed rejected by operation of law. As the 9th Circuit Bankruptcy Appellate Panel recently stated in In re Treat Fitness Center, 60 B.R. 878, 14 BCD 632 (9th Cir.BAP 1986): To not follow these rather explicit rules would be to lead us back into the morass of attempting to judge the meaning and import of the conduct and conversations of the parties. Id. at 879, 14 BCD at 633. That is precisely the type of situation this court is presently faced with as to what was said and meant by the debtor at the first meeting of creditors. Assumption by implication or action, rather than by filing a formal motion, “inevitably leads to the confusion and uncertainty exemplified by this case.” In re Kelly Lyn Franchise Co., Inc., 26 B.R. 441, 444 (Bankr.M.D.Tenn.1983). With respect to the lessor’s acceptance of rent payments, such actions cannot constitute a waiver of the lessor’s rights under section 365(d)(4) and section 365(d)(3) expressly so provides. See In re Las Margaritas, Inc., 54 B.R. 98, 100 (Bankr.D.Nev.1985);" }, { "docid": "1157067", "title": "", "text": "Limited, 654 F.2d 578, 587 (9th Cir.1981); In re Steelship Corp., 576 F.2d 128, 132-33 (8th Cir.1978); Brown v. Presbyterian Ministers Fund, 484 F.2d 998 (3rd Cir.1973); Nostromo, Inc. v. Fahrenkrog, 388 F.2d 82 (8th Cir.1968); In re Forgee Metal Products, Inc., 229 F.2d 799, 801 (3rd Cir.1956). One commentator dealing with this subject stated: Assumption of a contract is an act requiring notification of the party concerned. The trustee cannot assume merely in his own mind. He must notify the other party.... No particular form of notification is provided. A written or even an oral notice should be deemed sufficient. 4B Collier on Bankruptcy, If 70.42[6], at 533 (14th ed. 1976). The subject of executory contracts and unexpired leases is dealt with by § 365 of the Bankruptcy Code enacted by the Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549. While this Section adopted almost verbatim the language of § 70(b) of the Bankruptcy Act of 1898 and provided a 60-day period for the trustee to assume an executory contract or an unexpired lease and provided for the automatic rejection in the event the trustee failed to act within the time fixed, it contained no corresponding provision applicable to cases filed under Chapter 11 of the Bankruptcy Code. Thus, prior to the amendment of § 365 of the Bankruptcy Code by the Bankruptcy Amendment and Federal Judgeship Act of 1984 (BAFJA), in a Chapter 11 case the trustee was authorized to assume or reject an executory contract or an unexpired lease any time before confirmation of the plan. Due to the extensive lobbying by the shopping center interest which bitterly complained that this section is abused by Chapter 11 Debtors who are tenants in shopping centers, Congress amended § 365(d)(2). The amended version now provides that in a Chapter 9, 11, or 13 cases if a trustee does not assume or reject an unexpired lease of a non-residential real property within 60 days after the date of the Order for Relief, or within such additional time as the Court for cause may fix within such 60-day" }, { "docid": "7041213", "title": "", "text": "intent to assume. Rather, debtor or trustee must timely file a motion to assume as provided by Bankruptcy Rules 6006 and 9014. “To not follow these rather explicit rules would be to lead us back into the morass of attempting to judge the meaning and import of the conduct and conversations of the parties.” Id. at 879. The Ninth Circuit Court of Appeals has also recently held that assumption under § 365 requires express approval of the court. In re Harris Management Co., Inc., 791 F.2d 1412, 1414-15 (9th Cir.1986). This court follows its own prior decisions and the law of this Circuit in now holding that the debtor Spats did not assume the subject lease by its conduct. Waiver and Estoppel In Treat Fitness Center the debtor argued that its ongoing discussions with the landlord concerning assignment, sub-lease, or purchase of the lease should be deemed by the court to be conduct equivalent to assumption. Although the Panel rejected this line of reasoning, it did not address whether the lessor’s conduct may give rise to waiver or estoppel. Las Margaritas briefly addresses estop-pel. There, this Court held that the lessor’s mere acceptance of rental payments, without more, cannot estop the lessor from insisting on the automatic rejection provisions of § 365(d)(4). 54 B.R. at 100. However, the debtor Spats argues that Scott did more than just accept rent from the debtor. In fact, Scott accepted rent from the “new owner”, Ms. Ezell, and indicated his approval of her. The debtor contends that under non-bankruptcy law, the actions of both the lessor and lessee operate as a “surrender” of the lease and an irrevocable acceptance by the lessor of the new tenant, citing Washoe County Bank v. Campell, 41 Nev. 153, 167 P. 643 (1917). The debtor also relies on In re Haute Cuisine, Inc., 57 B.R. 200 (Bankr.M.D.Fla.1986), in which the court applied estoppel against the landlord in a § 365(d)(4) context. The Court doubts whether the equitable doctrines of waiver and estoppel have any application at all in the context of rejection by operation of law as provided" }, { "docid": "3270366", "title": "", "text": "in cases decided in other jurisdictions. Appellants opine the cases permit informal assumption of the lease through conduct. I have read the three cases cited, Appellants’ Opening Brief at 2-3, in support of this proposition: Ro-An; In re Electrospace Corp., 39 B.R. 632 (S.D.N.Y.1984); and In re 1 Potato 2, Inc., 58 B.R. 752 (Bankr.D.Minn.1986). Of the three cases, only Ro-An is on point. As stated above, I respectfully decline to follow that case because, m my view, it gives short shrift to Rules 6006(a) and 9014. I believe the better reasoned position to be exemplified by such cases as In re Treat Fitness Center, Inc., 60 B.R. 878 (9th Cir.Bankr.App.Panel 1986). The Treat court wrote: We respectfully disagree with the district court’s decision in Ro-An. 11 U.S.C. § 365 specifically states that the trustee, subject to court approval, may assume or reject an executory contract. Bankruptcy Rule 6006 states that a proceeding to assume or reject an executory contract or unexpired lease is governed by Bankruptcy Rule 9014 which in turn states that relief shall be requested by motion and reasonable notice and opportunity for a hearing shall be afforded to the opposing party. To not follow these rather explicit rules would be to lead us back into the morass of attempting to judge the meaning and import of the conduct and conversations of the parties. Id. at 879. I agree with this rationale and so adopt the rule espoused by the Treat line of cases. Accord In re A.H. Robins Co., Inc., 68 B.R. 705, 709 (Bankr.E.D.Va.1986); In re Communications Company of America, 65 B.R. 580, 581 (Bankr.M.D.Fla.1986); In re Chandel Enterprises, Inc., 64 B.R. 607, 609 (Bankr.C.D.Cal.1986); see also In re Bon Ton, at 854, 854, n. 6 (dictum). Electrospace is similarly unpersuasive. That case was decided under § 70(b) and Rule 607 of the old bankruptcy act and rules, respectively. Id. at 638. Cases decided under these repealed provisions are of little use in adjudicating the issue under consideration here because former Rule 607 only suggested, and did not require, court approval before the trustee assumed" } ]

[ { "docid": "10017490", "title": "", "text": "physical abandonment of the Carondelet Branch.” On February 6, 1992, Gateway Trailnet (Trailnet), a Missouri corporation, had petitioned the ICC for a NITU applicable to the portion of railway that MoPac was seeking to abandon. Trailnet is a non-profit corporation which operates recreational trails. The ICC issued a NITU on March 25, 1992 allowing MoPac and Trailnet to negotiate an agreement for interim trail use for the affected part of rail line. After a series of extensions of the NITU, MoPac and Trailnet came to an agreement for interim trail use for the 6.2-mile stretch of land; this agreement was finalized on December 30, 1992. On that same day, MoPac executed a quitclaim deed in favor of Trailnet conveying all of its interests in the Carondelet Branch. After executing its agreement with Trailnet, MoPac removed all of the rails and ties along the line; Trailnet has since maintained and operated a recreational trail along the line. Grantwood Village v. Missouri Pac. R.R. Co., 95 F.3d 654 (8th Cir.1996). The agreement between MoPac and Trail-net allowed for the possible resumption of rail service on the 6.2-mile stretch. On April 9, 1997 Union Pacific Railroad Corporation applied to the STB to reopen an 1100-foot portion of the Carondelet Branch previously abandoned by the March 25, 1992 NITU order. The STB granted this request on April 18,1997. Glosemeyer and Moore The Glosemeyers, plaintiffs in No. 93-126L, and the plaintiffs in No. 93-134L (“Moore plaintiffs”) own parcels of property along almost 200 miles stretching between Machens and Sedalia, Missouri. Until 1987, the Missouri-Kansas-Texas Railroad Company (“MKT”) operated a railroad over plaintiffs’ lands (“the Maehens-Sedaha line”) by virtue of right-of-way easements. In September of 1986 the MKT filed an appbcation with the ICC seeking to abandon railway service along the Machens-Sedalia bne. In its appbcation for abandonment filed August 20, 1986, MKT sought to “abandon” the Machens-Sedalia bne and “all operations thereover” and authority to dismantle the rail line. Appbcation of Missouri-Kansas-Texas Railroad Company, I.C.C. Docket No. AB-102, at 2. As justification for its appbcation, MKT stated: The bne which [MKT] seeks to abandon is" } ]

[ { "docid": "4562943", "title": "", "text": "as to whether Mrs. Bing-ham's grantor owned the fee in said avenue. If he did not, that of itself would necessarily restrict her to the margin of the avenue.” Lawrence, 284 S.W. at 887-88. Therefore, this court will follow the Tennessee Supreme Court’s opinion that the Bingham opinion is not persuasive due to the unclear record. Moreover, the language in the deed identified by the Crews plaintiffs does not call for the \"side of” the right-of-way, and thus Bingham is factually distinguishable. . The parties agree that the easements obtained by condemnation and prescription, and the Mul-Iins/Small Deed, are limited to railroad purposes under Tennessee law. See Def.’s Cross-Mot. at 2-3. . The Crews plaintiffs do not claim a reversion-ary interest in these easements, nor do they own property adjacent to the easements conveyed by these deeds. Therefore, this dispute is between the government and the Thomas plaintiffs only. .This is true unless the plaintiffs could show that the railroad had abandoned the subject rail corridor before the issuance of the NITU, such that the easements had already reverted to plaintiffs before railbanking and interim trail use were imposed on plaintiffs' property pursuant to the Trails Act. See Preseault II, 100 F.3d at 1533. . Several courts have found that such a com-pensable taking has resulted under the respective state laws in connection with railroad purpose easements. See, e.g., Preseault II, 100 F.3d 1525 (Vermont); Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308 (1986) (Washington); Pollnow v. State Dep't of Natural Resources, 88 Wis.2d 350, 276 N.W.2d 738 (1979) (Wisconsin); Glosemeyer v. United States, 45 Fed.Cl. 771 (2000) (Missouri); Toews v. United States, 376 F.3d 1371 (Fed.Cir.2004) (California); Rogers v. United States, 90 Fed.Cl. 418 (2009) (Florida); Macy Elevator v. United States, 97 Fed.Cl. 708 (2011) (Indiana); Capreal, Inc. v. United States, 99 Fed.Cl. 133 (2011) (Massachusetts); Ybanez v. United States, 98 Fed.Cl. 659 (2011) (Texas); Biery v. United States, 99 Fed.Cl. 565 (2011) (Kansas). In several other states, courts have found that the STB's authorization of railbanking and recreational trail use does not give rise to a taking" }, { "docid": "3262783", "title": "", "text": "a recreational trail, \"it is unnecessary for us definitively to address the question of whether there had been an earlier abandonment of the easement\"). The court therefore does not reach the timing of the abandonment of the Des Moines Valley right-of-way easements under Iowa and federal law. . Therefore, the court will not analyze the scope of the condemned easements at issue under the parties’ cross motions. . At oral argument, the government preferred to use the term \"railroad purpose easement” rather than \"railbanking easement” to refer to the scope or extent of its taking as limited to the taking of an easement subject to possible reactivation as a railroad. However, to avoid confusion with the court's analysis of the scope of the deeded easements—in which the court refers to the scope as limited to railroad purposes only— the court will use the term \"railbanking easement” rather than \"railroad purpose easement” for Part IV of its analysis, in line with the terminology found in the regulations accompanying the Trails Act. See, e.g., 49 C.F.R. § 1152.29(a) (outlining the procedure for \"using a right-of-way of a rail line proposed to be abandoned for interim trail use and rail banking pursuant to 16 U.S.C. 1247(d)”). . Regarding the government action that gives rise to a taking, the Federal Circuit has held that \"[t]he issuance of the NITU is the only government action in the railbanking process that operates to prevent abandonment of the corridor and to preclude the vesting of state law reversionary interests in the right-of-way.” Caldwell II, 391 F.3d at 1233-34; see also Ladd, 630 F.3d at 1023-24. . Therefore, contrary to plaintiffs’ argument, the court’s interpretation of the deeded easements will not be informed by the 1860 Iowa condemnation statute. See Pis.’ Mem. at 16-17 (citing Daniels v. Chicago & N. W. Railroad Co., 35 Iowa 129, 1872 WL 354, at *3 (Iowa 1872) (holding under Iowa law, by condemnation, the railroad only acquires an easement limited to railroad purposes)). . Plaintiffs also argue that in Iowa, railbanking and public recreational trail use always fall outside the scope of" }, { "docid": "4562882", "title": "", "text": "to the fee owner. Ladd v. United, States, 630 F.3d 1015, 1019 (Fed.Cir.2010), reh’g denied, 646 F.3d 910 (Fed.Cir.2011). The Federal Circuit has explained that “Rails-to-Trails” cases present three primary questions: (1)who owned the strips of land involved, specifically did the Railroad ... acquire only easements, or did it obtain fee simple estates; (2) if the Railroad acquired only easements, were the terms of the easements limited to use for railroad purposes, or did they include future use as public recreational trails; (3) even if the grants of the Railroad’s easements were broad enough to encompass recreational trails, had these easements terminated prior to the alleged taking so that the property owners at that time held fee simples unencumbered by the easements. Preseault v. United States, 100 F.3d 1525, 1533 (Fed.Cir.1996) (“Preseault //”); see also Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed.Cir.2009). If the railroad receives only a railroad purpose easement and if the recreational trail use and railbanking authorized by the NITU exceed the scope of that easement and thereby prevent expiration of the easement and rever-sionary interests from vesting in the fee owners, then a Fifth Amendment taking has occurred. See Ladd, 630 F.3d at 1019. C. Factual Background The following facts are not disputed unless otherwise noted. Plaintiffs in this action allege a Fifth Amendment taking based on their property rights in a railroad right-of-way established in the nineteenth century. Beginning in the late 1800s, the Tennessee Midland Railway Company obtained property rights in conjunction with its construction of a railroad right-of-way in Shelby County, Tennessee. The Tennessee Midland Railway Company obtained its property interests in the rail corridor through deed, prescription, and condemnation. Through subsequent railroad transactions, CSX Transportation, Inc. (“CSXT”) became the successor owner of these property interests over a 13.34 mile rail corridor extending from milepost 210.66 near Cordova and milepost 224 in Memphis, Tennessee. On September 7, 2007, CSXT filed with the STB a Notice of Exempt Abandonment seeking to abandon the railroad line. On October 5, 2007, the Memphis Community Connector (“MCC”) filed with the STB a statement" }, { "docid": "7110642", "title": "", "text": "Compl. ¶ 8. The Railroad’s Petition to “Abandon” the Corridor On December 15, 2003, the successor to Seaboard, Seminole Gulf Railway, L.P. (“SGLR”), filed a petition with the Surface Transportation Board (“STB”) to abandon an approximately 12.43 mile portion of its railway corridor between Sarasota and Venice, Florida. Pis.’ Response to Jan. 15, 2009 Order Requesting Supplemental Briefing (“Pis.’ Resp. to Jan. 15, 2009 Order”) Ex. 3(b). According to SGLR’s petition, CSX was the “underlying landowner” of this portion of the railroad corridor. Id. On April 2, 2004, the STB issued a Decision and Notice of Interim Trail Use or Abandonment (“NITU”) wherein SGLR and CSX — as successors and assigns of Seaboard — granted the Trust for Public Land (“the Trust”), a national, nonprofit, land conservation organization, an option to acquire the railway right-of-way for conversion to a trail. Rogers Am. Compl, Ex. B; Bird Bay Am. Compl, Ex. B. The Trust agreed to work with Sarasota County to convert the right-of-way into a public access recreational trail. On January 13, 2005, CSX and the Trust, in reliance upon the NITU, executed a quitclaim deed to effect this conversion. Rogers Am. Compl, Ex. C; Bird Bay Am. Compl, Ex. C. The quitclaim deed affects the property owned by Plaintiffs and states that the premises covered by the deed “remain subject to the jurisdiction of the STB for purposes of reactivating rail service.” Rogers Am. Compl, Ex. C; Bird Bay Am. Compl, Ex. C. The Landowners Plaintiffs claim that the landowners in both Rogers and Bird Bay acquired their parcels prior to the STB’s issuance of the NITU on April 2, 2004. With the exception of Plaintiff Mission Estates, Defendant does not dispute that when the STB issued the NITU on April 2, 2004, the landowners owned property that abutted the railroad corridor. Def.’s Resp. to Pis.’ PFUF at 14; Pis.’ Resp. to May 1, 2009 Order Ex. A In contending that Mis sion Estates owned property that abuts the railroad corridor on April 2, 2004, Plaintiffs submitted a copy of an indenture, as well as an associated plat, conveying" }, { "docid": "3262779", "title": "", "text": "line is of limited scope, and continued regulation is unnecessary to protect shippers from abuse of market power. Id. § 1152.50(c). The railbanking process works in largely the same manner, whether the proceeding is exempt from the abandonment process or non-exempt. . The statute defines \"qualified trail provider” as a \"state, political subdivision, or qualified private organization that is prepared to assume full responsibility for management of [railroad] rights-of-way and for any legal liability arising out of such transfer or such use, and for the payment of any and all taxes that may be levied or assessed against the [railroad] rights-of-way.” 16 U.S.C. § 1247(d). . As explained above, issuance of a CITU or a NITU is an alternative to the standard process of approving the railroad's application for abandonment. Where the STB issues an order authorizing the railroad to abandon the line and the railroad carries out the abandonment, the STB’s jurisdiction over the railroad right-of-way termi nates. Hayfield N. R.R. Co. v. Chicago & N.W. Transp. Co., 467 U.S. 622, 633-34, 104 S.Ct. 2610, 81 L.Ed.2d 527 (1984); Preseault I, 494 U.S. at 7, 110 S.Ct. 914. . Throughout this order, the court will use the term “deeded easements\" to refer to the Des Moines Valley right-of-way easements conveyed voluntarily by deed, and \"condemned easements\" for those obtained by condemnation order. . As discussed in greater detail below, the extent of plaintiffs' property interests depends on the law of the state in which the property is located. The court, in determining what, if any, property interests have been taken by the government must therefore make its determination based on Iowa law. Iowa Code § 327G.76 and 327G.77 govern the abandonment and reversion of rail corridor right-of-ways. Section 327G.76 states: Railroad property rights which are extinguished upon cessation of service by the railroad divest when the department of transportation or the railroad, having obtained authority to abandon the rail line, removes the track materials to the right-of-way. If the department of transportation does not acquire the line and the railway company does not remove the track materials, the property" }, { "docid": "4562884", "title": "", "text": "of willingness to assume financial responsibility over the railroad line, pursuant to the Trails Act. On October 26, 2007, the STB issued a NITU authorizing interim trail use. On August 13, 2009, CSXT and MCC reached a Trail Use Agreement, pursuant to which CSXT transferred a 7.08 mile portion of the railroad line to MCC for use as a recreational trail. The quitclaim deed transferring this portion of the railroad line in connection with the NITU states that the property shall be used for “the sole purpose of the construction, maintenance, enhancement, operation, and use of a recreational trail.” Def.’s Findings of Fact (“FOF”), Ex. E, ECF No. 79-1. CSXT reserved certain rights and easements in conveying the rail corridor, including utility easements under the rail corridor and the right to maintain commuter rail operations on the corridor subject to the approval of the trail operator should those activities interfere with the use of the trail. Id. It is the 7.08 mile portion of the railroad line that is at issue in this case. The parties agree that the railroad acquired a fee interest in several segments of the subject rail corridor. See Joint Stipulation I, ECF No. 50. For the remaining segments of the railroad line at issue here, the parties agree that the Tennessee Midland Railway Company obtained easements in the rail corridor through prescription, condemnation, and through three voluntary conveyances made by L.D. Mullins and J.W. Small (“Mullins/Small Deed”), Rob Golightly (“Golightly Deed”), and W.H. Graff and Amanda E. Graff (“Graff Deed”) in the late 1800s. Joint Stipulation II, III. Plaintiffs are individuals and entities that claim to own land adjacent to the subject right-of-way, or a reversionary interest in the land underlying the right-of-way, on the date of the STB’s October 26, 2007 NITU. Plaintiffs in this action were consolidated from two separate lawsuits, Crews v. United States, No. 10-459L, and Thomas v. United States, No. 10-54L, a class action. Plaintiffs in the Crews case (“Crews plaintiffs”) are the heirs of L.D. Mullins, the grantor of a depot station and a portion of the rail corridor" }, { "docid": "4562922", "title": "", "text": "properties. The Graff Deeds mentions the “construction of [the Tennessee Midland Railway Company’s] line of railroad.” Thomas Pis.’ FOF ¶ 18. The Golightly Deed mentions that “Company’s railway as located and staked out.” Id. ¶ 19. Interpreting the deeds together with their surrounding circumstances, the court concludes that the intention of the parties in this instance was to grant to the railroad a right-of-way for use as a rail corridor. Based on Tennessee rules of deed construction and the language of the Graff and Golightly Deeds, the court finds that the Thomas plaintiffs are therefore entitled to summary judgment on this issue. D. The government is liable for a taking of plaintiffs’ property interests. Having determined that the easements granted by condemnation, prescription, and the Mullins/Small, Graff, and Go-lightly Deeds conveyed easements limited to railroad purposes only, the court must now determine, under the second step of the Federal Circuit’s Preseault II framework, whether railbanking and trail use fall outside the scope of these railroad purpose easements under Tennessee law. Preseault II, 100 F.3d at 1533 (holding that the court must ask “if the Railroad acquired only easements, were the terms of the easements limited to use for railroad purposes, or did they include future use as public recreational trails”). Under Preseault II, if recreational trail use and railbanking as authorized by the NITU exceed the scope of a railroad purpose easement and prevent state law reversionary interests from vesting in the fee owners, then a taking has occurred. See Ladd, 630 F.3d at 1019. In support of its argument that railbanking and trail use do not amount to a taking by the federal government, the government argues that (1) the government is not responsible for the trail use that exceeds the scope of the easements, (2) railbanking is a railroad purpose under Tennessee law, and (3) under Tennessee law, railbanking and trail use do not cause “abandonment” of the rail corridor. The court now addresses each of the government’s arguments. 1. The government’s NITU authorizes uses that exceed the scope of the railroad purpose easements. The parties agree that," }, { "docid": "14421781", "title": "", "text": "for an extension “to ensure that the NITU remains in effect until actual transfer of the corridor to the interim trail manager,” finding the “extension of the NITU negotiating period [to be] warranted” and that “[a]s long as an abandonment has not been consummated and the railroad agrees to negotiate, the Board’s jurisdiction is not terminated.” (J.A. at 446.) Norfolk transferred its easement for the 10.6 mile railroad line right-of-way by quitclaim deed on October 9, 1996. The deed was recorded on October 11, 1996. On November 2, 1996, the City filed a “Notification of Railbanking/Interim Trail Use Agreement” to “formally notify the [STB] that, on October 13, 1996, the railroad lines [were] transferred to the City of Columbus as interim trail manager pursuant to an interim trail use/railbanking agreement.” (J.A. at 454.) The notification further stated that “[a]s a result of the successful completion of this railbanking/interim trail use transaction, the NITU should now extend indefinitely.” Id. This notice was entered into the STB record on November 5,1996. Ill The appellants, Caldwell, own land that was burdened by the easement Norfolk owned for the 10.6 mile railroad line right-of-way that was the subject of NITU and the railbanking agreement. On October 7, 2002, Caldwell filed a complaint in the Court of Federal Claims pursuant to the Tucker Act, 28 U.S.C. § 1491, on behalf of themselves and the class of people who also owned land burdened by the rail-banked easement. Caldwell alleged that the government’s conversion of the 10.6 mile railroad right-of-way to trail use constituted a compensable taking because the conversion extinguished state law reversionary property interests that would otherwise take effect following the cessation of railroad activities and subsequent abandonment of the easement for railroad use of the right-of-way. On June 30, 2003, the Court of Federal Claims granted the government’s motion to dismiss the complaint because the six-year statute of limitations under 28 U.S.C. § 2501 had run. Caldwell, 57 Fed.Cl. at 204. The court rejected Caldwell’s argument that its takings claim accrued within the limitations period, when the right-of-way deed was transferred from Norfolk to" }, { "docid": "19233893", "title": "", "text": "a NITU for the segment of the line between MP 1-74.2 at Peri, IN and MP 1-95.6 at Rochester, IN (Northern Segment) after the U.S. Bankruptcy Court would terminate [IHRC’s] trackage rights over that Northern Segment of the Line. While ITF did not make this request until several years after the Board’s May 14, 1996 decision, it was not necessary to do so for the valid establishment of interim trail use on the Line because [N & W] and ITF had complied with the essential requirements of the Trails Act in reaching the 1998 agreement and closing the 1999 conveyance. The [2004] NITU request was timely because [N & W] had not consummated abandonment of any portion of the Line except the Northern Peru Segment [between 1-74.2 and 1-75.5] prior to the date ITF made the request and [N & W] supported it. It is well settled that the Board can issue a NITU in response to a late-filed request, or reinstate a NITU negotiation period that has expired, if the railroad has not consummated abandonment of the subject line. The interim trail use agreement and conveyance to ITF of the Trail Segments of the Line’s right-of-way conclusively demonstrate [N & W]’s continuous intention to convey the Trail Segments of the Line included in the agreement and conveyance for trail use, not to abandon them. Def.’s Prop. Find. Uncont. Fact Ex. H, ECF No. 34-1. C. The Landowners and the Original Railroad Conveyances The plaintiffs in this case are the individuals and entities that owned land abutting the N & W railroad right-of-way on the date of the STB’s issuance of the NITU on March 8, 2004. N & W, through its predecessors, acquired its interests in the rail right-of-way during the second half of the 19th century. The manner in which N & W acquired its rights is shown in a schedule filed by N & W’s predecessor with the ICC in 1918. The parties reviewed seventy-four deeds and are in agreement that fourteen of the deeds conveyed the right-of-way corridor to the railroad in fee, and the plaintiffs" }, { "docid": "20365800", "title": "", "text": "must “be clear and unmistakable” showing “a purpose to repudiate ... ownership”). Here, Union Pacific’s regulatory filings with the STB unequivocally expressed an intent to renounce the railroad’s interest in the right-of-way. In the Notice of Exemption, Union Pacific stated that it “intends to abandon the Marietta Industrial Lead from milepost 133.13 near Marysville to milepost 125.00 near Marietta,” that “there appears to be no reasonable alternative to abandonment,” and that “[t]he property proposed for abandonment is not suitable for other public purposes.” (Union Pacific Notice of Exemption, Oct. 29, 2003, ¶¶ (a)(3), (e)(4).) These statements in Union Pacific’s application are clear evidence of the railroad’s intent to abandon its easements. Moreover, in its notice, Union Pacific was not considering a potential for railbanking, as it observed that the “title to all of the operating right-of-way is reversionary in nature.” Id. ¶ (e)(4). As the Court observed in Glosemeyer, construing Missouri law: In the case of railroads ... an easement for a railroad right-of-way is extinguished when the railroad ceases to run trains over the land. The test for abandonment of an easement under Missouri law is therefore, non-user of the easement accompanied by conduct indicating an intention to abandon. Glosemeyer, 45 Fed.Cl. at 777 (quoting Kansas City Area Transp. Auth. v. 4550 Main Assoc., Inc., 742 S.W.2d 182, 189 (Mo.Ct.App.1986)). The same outcome would be reached under Kansas law. Union Pacific actually rid itself by conveyance of its entire legal interest in these easements. The Marshall County Connection, Inc., not Union Pacific, is now the owner of record of the easements, and it is modifying the former rail beds for use as recreational trails. Conveying an interest in land to another party is clear evidence of abandonment, particularly when the new use is for a different purpose. See Glosemeyer, 45 Fed.Cl. at 778. The Court finds it immaterial that the actions and conveyances completing the transactions may not have occurred until after the STB issued the December 15, 2003 NITU. The fact remains that the federal agency’s action blocked the reversion of the easement to the fee simple landowners" }, { "docid": "3262761", "title": "", "text": "its inception as an act to promote the nation’s recreational trails to its present dual purpose in preserving rail corridors for future rail use and encouraging recreational trail development. See Preseault I, 494 U.S. 1, 10, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). This intention is affirmed by the Federal Circuit’s interpretation of the Trails Act in the context of Fifth Amendment takings actions, to which the court now turns. B. Federal Circuit Precedent As discussed above, Federal Circuit precedent establishes that a taking occurs when the STB issues a NITU, which “operates to prevent abandonment of the corridor and to preclude the vesting of state law reversionary interests in the right-of-way.” Caldwell v. United States, 391 F.3d at 1233-34. Under the Trails Act, what is “taken” is the landowner’s reversionary interest in the right-of-way land unencumbered by any easement. In other words, by operation of the Trails Act, the STB works to block the ability of the underlying fee owners to reclaim their property free of any railroad easement. On this all parties agree. See Def.’s Cross-Mot. at 27; Pls.’ Reply at 1. In this ease, the dispute arises as to the scope or extent of the taking liability after it is clear that the government has blocked plaintiffs’ reversionary interest. The government argues that, regardless of the statutory and regulatory link between railbanking and trail use set forth above, the Federal Circuit has determined that the federal government is liable only for the actions taken by the STB in issuing the NITU, and that the NITU authorizes railbanking and nothing more. Def.’s Cross-Mot. at 28 (“The NITU does not authorize an interim use beyond the scope of underlying easements.”). In support of this contention, the government cites the Federal Circuit’s recent decisions in Caldwell v. United States, 391 F.3d 1226 (Fed.Cir.2004), Barclay v. United States, 443 F.3d 1368 (Fed.Cir.2006), and Ladd v. United States, 630 F.3d 1015 (Fed.Cir.2010). Def.’s Cross-Mot. at 29-30. Together, these cases hold that, in the context of the Trails Act, a takings claim accrues upon the issuance of a NITU or CITU. See Caldwell," }, { "docid": "7110680", "title": "", "text": "a right-of-way as a recreational trail is “clearly different” from the usage of the same parcel of land as a railroad corridor. Preseault II, 100 F.3d at 1542. As such, the terms of the Honoré easement were limited to use for railroad purposes and did not contemplate use for public trails. Thus, the governmental action converting the railroad right-of-way to a public trail right-of-way imposed a new easement on the landowners and effected a Fifth Amendment taking of their property. Id. at 1550. Because it is clear that the Honoré easement did not encompass recreational trails, this Court need not reach the third prong of the Preseault II analysis — i.e., whether, even if the grants of the railroad’s easements were broad enough to encompass recreational trails, these easements had terminated prior to the alleged taking. See Preseault II, 100 F.3d at 1549 (“[W]e find the question of abandonment is not the defining issue, since whether abandoned or not the Government’s use of the property for a public trail constitutes a new, unauthorized, use.”). In conclusion, railbanking and trail use do not fall within the scope of the easement created by the Honoré deed, and the conversion of the section of the railroad right-of-way governed by this deed to a public trail creates a new, unauthorized easement. As such, all of the landowners who owned property on April 2, 2004, that abuts the railroad right-of-way established by the Honoré deed are entitled to just compensation under the Fifth Amendment. The Bird Bay Property The history of the section of the railroad corridor adjacent to Bird Bay’s property is more complicated. The parties jointly provided a complete compilation of the instruments conveying interests in land since 1910 — the approximate year of the railroad’s construction. Conspicuously absent from the chain of title, however, is the instrument that first conveyed the right-of-way, and the attendant interests or rights, to Seaboard. Under Preseault II, whether Bird Bay has a present property interest in the land underlying the right-of-way depends upon the nature of the original conveyance. Preseault II, 100 F.3d at 1534 (“The" }, { "docid": "4562883", "title": "", "text": "prevent expiration of the easement and rever-sionary interests from vesting in the fee owners, then a Fifth Amendment taking has occurred. See Ladd, 630 F.3d at 1019. C. Factual Background The following facts are not disputed unless otherwise noted. Plaintiffs in this action allege a Fifth Amendment taking based on their property rights in a railroad right-of-way established in the nineteenth century. Beginning in the late 1800s, the Tennessee Midland Railway Company obtained property rights in conjunction with its construction of a railroad right-of-way in Shelby County, Tennessee. The Tennessee Midland Railway Company obtained its property interests in the rail corridor through deed, prescription, and condemnation. Through subsequent railroad transactions, CSX Transportation, Inc. (“CSXT”) became the successor owner of these property interests over a 13.34 mile rail corridor extending from milepost 210.66 near Cordova and milepost 224 in Memphis, Tennessee. On September 7, 2007, CSXT filed with the STB a Notice of Exempt Abandonment seeking to abandon the railroad line. On October 5, 2007, the Memphis Community Connector (“MCC”) filed with the STB a statement of willingness to assume financial responsibility over the railroad line, pursuant to the Trails Act. On October 26, 2007, the STB issued a NITU authorizing interim trail use. On August 13, 2009, CSXT and MCC reached a Trail Use Agreement, pursuant to which CSXT transferred a 7.08 mile portion of the railroad line to MCC for use as a recreational trail. The quitclaim deed transferring this portion of the railroad line in connection with the NITU states that the property shall be used for “the sole purpose of the construction, maintenance, enhancement, operation, and use of a recreational trail.” Def.’s Findings of Fact (“FOF”), Ex. E, ECF No. 79-1. CSXT reserved certain rights and easements in conveying the rail corridor, including utility easements under the rail corridor and the right to maintain commuter rail operations on the corridor subject to the approval of the trail operator should those activities interfere with the use of the trail. Id. It is the 7.08 mile portion of the railroad line that is at issue in this case. The" }, { "docid": "20365779", "title": "", "text": "OPINION AND ORDER WHEELER, Judge. Plaintiffs in this rails-to-trails case are Kansas real property owners who claim to hold a fee simple interest in land subject to a railroad right-of-way. Their Fifth Amendment takings claims have been joined in one action for the resolution of common issues of federal and Kansas law. The ease involves an 8.13-mile corridor of land just north of Marysville, Kansas in Marshall County, near the Nebraska border. Pending before the Court are the parties’ cross-motions for summary judgment on liability. The Court has jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1) (2006). The question presented is whether a December 15, 2003 Notice of Interim Trail Use (“NITU”) issued by the Federal Surface Transportation Board (“STB”) constituted a Fifth Amendment taking of Plaintiffs’ property interests. Subsidiary questions are whether the Union Pacific Railroad abandoned its rights in the easements it held, and whether the “railbanking” of otherwise abandoned railroad easements for possible future use constituted a railroad purpose under Kansas law. “Railbanking” is a procedure allowing for interim trail use of abandoned railroad corridors, permitted by Congress through 1983 Amendments to the National Trails System Act, 16 U.S.C. § 1241 et seq. (2006) (the “Trails Act”). See Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901, 903 n. 1 (8th Cir.1997) (the term rail-banking refers to “the preservation of railroad corridor for future rail use.”); Caldwell v. United States, 57 Fed.Cl. 193, 194 (2003) (under the railbanking process, “[t]he right-of-way is ‘banked’ until such future time as railroad service is restored.”), aff'd 391 F.3d 1226 (Fed.Cir.2004). Guidance from the Federal Circuit in these cases is that a Fifth Amendment taking occurs if federal government action destroys state-defined property rights by converting a railroad easement to a recreational trail, if trail use is outside the scope of the railroad easement. Ladd v. United States, 630 F.3d 1015, 1019 (Fed.Cir.2010); Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed.Cir.2009). Thus, in this ease, the Court must look to Kansas law to determine the scope of the railroad easement, and then examine whether the federal" }, { "docid": "3262721", "title": "", "text": "the late nineteenth century. Beginning in the 1860s, the Des Moines Valley Railroad Company obtained property rights in conjunction with its construction of the Des Moines Valley right-of-way through a combination of voluntary conveyances and condemnation. See, e.g., Pis.’ Proposed Findings ¶ 147.a; id., Ex. II.l, ECF No. 49-8 (example of a Des Moines Valley right-of-way deed); id. ¶ 146.a; id., Ex. 1.1, ECF No. 49-7 (example of a condemnation proceedings report for the Des Moines Valley right-of-way). For voluntary conveyances along the rail line, the railroad company used a standard form of a right-of-way deed: [Grantors] hereby sell and convey to the Des Moines Valley Rail Road Company, a corporation duly organized under the laws of the State of Iowa, the right of way for railroad as the same is located said right of way to be one hundred feet in width to be used for a single or double track for said railroad and for any other Rail Road purposes or uses over and across the following described tract in the County of Dallas and State of Iowa, [legal description of the property]. See, e.g., id., Ex. II.l, ECF No. 49-8. The government concedes that the Des Moines Valley right-of-way deeds granted the railroad an easement rather than a fee under Iowa law. See Def.’s Cross-Mot. at 15; Pis.’ Reply at 17. Plaintiffs in this case are individuals and entities that claim to own land adjacent to the Des Moines Valley right-of-way during the issuance of the STB’s October 25, 2004 NITU. Pis.’ Mem. at 1-2. As explained in more detail below, plaintiffs argue that they are entitled to a liability finding under the pending cross motions for both the deeded and condemned Des Moines Valley right-of-way easements, arguing that the government, by authorizing the interim trail use agreement between Union Pacific and the Foundation, is liable for a taking by forestall ing plaintiffs’ reversionary interests in the easements. The government moves for summary judgment with respect to the deeded Des Moines Valley right-of-way easements, arguing that the deeds granted unlimited easements to the railroad, that recreational trail" }, { "docid": "3262760", "title": "", "text": "railbanking. See 49 C.F.R. § 1152.29(d)(1). The Trails Act regulations clearly mandate this link between interim trail use and railbanking. If a trail use agreement cannot be reached, railbanking is not separately permitted. Rather, without a trail use agreement, the railroad will be allowed to abandon the line, and the federal government will lose its jurisdiction over the right-of-way. Id. The fact that the Trails Act authorizes the federal government to preempt state abandonment laws during negotiations for an interim trail use agreement does not alter the extent of the government’s liability in the event a trail use agreement is eventually reached. In the instance where no agreement is reached, the scope of the government’s liability is limited to the period of the negotiation. In those cases where an agreement is reached, the government’s liability for a taking includes the foreseeable consequences of the agreement between the railroad and trail operator to railbank the corridor and operate a trail. This regulatory scheme is consistent with the language and legislative history behind the Trails Act, from its inception as an act to promote the nation’s recreational trails to its present dual purpose in preserving rail corridors for future rail use and encouraging recreational trail development. See Preseault I, 494 U.S. 1, 10, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). This intention is affirmed by the Federal Circuit’s interpretation of the Trails Act in the context of Fifth Amendment takings actions, to which the court now turns. B. Federal Circuit Precedent As discussed above, Federal Circuit precedent establishes that a taking occurs when the STB issues a NITU, which “operates to prevent abandonment of the corridor and to preclude the vesting of state law reversionary interests in the right-of-way.” Caldwell v. United States, 391 F.3d at 1233-34. Under the Trails Act, what is “taken” is the landowner’s reversionary interest in the right-of-way land unencumbered by any easement. In other words, by operation of the Trails Act, the STB works to block the ability of the underlying fee owners to reclaim their property free of any railroad easement. On this all parties agree." }, { "docid": "4562934", "title": "", "text": "actions, while perhaps made in the interest of CSXT, do not amount to the “maintenance” necessary for the continued operation of CSXT’s rail service under Tennessee law. Rather, CSXT’s transfer of the corridor affirmatively precludes railroad operations along the corridor without permission of the non-railroad third party trail operator should these operations interfere with trail use, or until the STB, under the Trails Act, decides to reactivate rail service, abandon the property, or otherwise exercise its jurisdiction over the corridor. Def.’s FOF, Ex. E. The court therefore concludes that, under Tennessee law, the railbanking here exceeds the scope of the railroad purpose easements obtained through condemnation, prescription, and voluntary conveyance through the Mullins/Small, Graff, and Golightly Deeds. 3. Abandonment is not relevant to the government’s taking liability. Having concluded that railbanking and trail use fall outside the scope of the railroad purpose easements under Tennessee law, the court declines to address the government’s arguments that railbanking and trail use under the Trails Act do not constitute Tennessee common law abandonment. Having determined that the railroad purpose easements do not encompass use as a recreational trail, the court finds it unnecessary to address whether the easements were abandoned for liability purposes. See Toews, 376 F.3d at 1381. IV. CONCLUSION For the foregoing reasons, the court finds as follows: 1. The Crews plaintiffs’ motion for summary judgment with respect to their interest in the fee underlying the railroad purpose easement granted by Mullins/Small Deed is DENIED. The Crews plaintiffs’ motion for summary judgment with respect to the government’s liability for their interest in the fee underlying the railroad easement adjacent to the portion of the depot property owned by the Crews plaintiffs is GRANTED. 2. The Thomas plaintiffs’ motion for summary judgment with respect to their interests in the fee underlying the railroad purpose easement granted by the Mullins/Small Deed is GRANTED. The Thomas plaintiffs’ motion for summary judgment with respect to the government’s liability for their interest in the fee underlying the railroad easement adjacent to their properties is also GRANTED. 3. The government’s motion for summary judgment with regard to" }, { "docid": "20365801", "title": "", "text": "land. The test for abandonment of an easement under Missouri law is therefore, non-user of the easement accompanied by conduct indicating an intention to abandon. Glosemeyer, 45 Fed.Cl. at 777 (quoting Kansas City Area Transp. Auth. v. 4550 Main Assoc., Inc., 742 S.W.2d 182, 189 (Mo.Ct.App.1986)). The same outcome would be reached under Kansas law. Union Pacific actually rid itself by conveyance of its entire legal interest in these easements. The Marshall County Connection, Inc., not Union Pacific, is now the owner of record of the easements, and it is modifying the former rail beds for use as recreational trails. Conveying an interest in land to another party is clear evidence of abandonment, particularly when the new use is for a different purpose. See Glosemeyer, 45 Fed.Cl. at 778. The Court finds it immaterial that the actions and conveyances completing the transactions may not have occurred until after the STB issued the December 15, 2003 NITU. The fact remains that the federal agency’s action blocked the reversion of the easement to the fee simple landowners following abandonment. E. Trail Use Defendant contends that the use of Union Pacific’s former railroad corridor as a recreational trail on an interim basis constitutes a permissible railroad purpose under Kansas law. However, the 1986 Kansas statute, Kan. Stat. Ann. § 66-525, is contrary to Defendant’s position. This law provides that any conveyance of the railroad’s right-of-way interest to another party “shall be null and void, unless such conveyance is made with a manifestation of intent that the railroad company’s successor shall maintain railroad operations on such right-of-way.” Kan. Stat. Ann. § 66 — 525(f). As the Court has observed, railroad operations consist of installing and maintaining tracks, and running trains over those tracks. See Glosemeyer, 45 Fed.Cl. at 778. To state the obvious, removing tracks to establish recreational trails is not consistent with a railroad purpose, and cannot be regarded as incidental to the operation of trains. The Federal Circuit addressed this precise question in the following way: [I]t appears beyond cavil that use of these easements for a recreational trail — for walking," }, { "docid": "19233894", "title": "", "text": "abandonment of the subject line. The interim trail use agreement and conveyance to ITF of the Trail Segments of the Line’s right-of-way conclusively demonstrate [N & W]’s continuous intention to convey the Trail Segments of the Line included in the agreement and conveyance for trail use, not to abandon them. Def.’s Prop. Find. Uncont. Fact Ex. H, ECF No. 34-1. C. The Landowners and the Original Railroad Conveyances The plaintiffs in this case are the individuals and entities that owned land abutting the N & W railroad right-of-way on the date of the STB’s issuance of the NITU on March 8, 2004. N & W, through its predecessors, acquired its interests in the rail right-of-way during the second half of the 19th century. The manner in which N & W acquired its rights is shown in a schedule filed by N & W’s predecessor with the ICC in 1918. The parties reviewed seventy-four deeds and are in agreement that fourteen of the deeds conveyed the right-of-way corridor to the railroad in fee, and the plaintiffs are not seeking compensation in connection with the properties abutting those sections of the right-of-way. The rest of the deeds conveyed only an easement to the railroad. Other sections of the right-of-way were acquired by prescription or condemnation. It is the scope of these easements, however created, that is at the heart of the present motion. For simplicity, the court has grouped the deeds that conveyed an easement to the railroad into three categories based upon similarities in the language of the instruments. Each is described below. 1. “Release of Right of Way” Deeds The most numerous type of deed received by N & W in this case provided an easement for a right-of-way without any other specific limiting language. Each of these deeds contains a variation on the following operative language: Release of Right of Way [Named Landowner] ... for and in consideration of [variable amounts of consideration] ... and the advantages which may or will result to the public in general and myself in particular by the construction of the Chicago, Cincinnati &" }, { "docid": "3262784", "title": "", "text": "1152.29(a) (outlining the procedure for \"using a right-of-way of a rail line proposed to be abandoned for interim trail use and rail banking pursuant to 16 U.S.C. 1247(d)”). . Regarding the government action that gives rise to a taking, the Federal Circuit has held that \"[t]he issuance of the NITU is the only government action in the railbanking process that operates to prevent abandonment of the corridor and to preclude the vesting of state law reversionary interests in the right-of-way.” Caldwell II, 391 F.3d at 1233-34; see also Ladd, 630 F.3d at 1023-24. . Therefore, contrary to plaintiffs’ argument, the court’s interpretation of the deeded easements will not be informed by the 1860 Iowa condemnation statute. See Pis.’ Mem. at 16-17 (citing Daniels v. Chicago & N. W. Railroad Co., 35 Iowa 129, 1872 WL 354, at *3 (Iowa 1872) (holding under Iowa law, by condemnation, the railroad only acquires an easement limited to railroad purposes)). . Plaintiffs also argue that in Iowa, railbanking and public recreational trail use always fall outside the scope of an easement for railroad purposes. Pis.'Mem. 21-36. The government does not argue that trail use falls within the scope of a railroad purpose easement under Iowa law. The government conceded at oral argument that if this court found that the Des Moines Valley deeded easements were limited to railroad purposes, takings liability would attach. Therefore, the court does not address this aspect of plaintiffs' argument. . \"At common law the object of an habendum clause in a deed was to define the grantee’s estate, but where the estate has been clearly defined and expressed in the premises or granting clause, if the habendum clause is inconsistent or repugnant thereto, it must yield to the granting clause. The habendum will not be permitted to defeat the clear intent of the grantor expressed in the granting clause. The modern rule in this state is to gather the intent of the grantor from the entire instrument and the circumstances surrounding its execution.” Blair v. Kenaston, 223 Iowa 620, 273 N.W. 184, 186 (1937) (citations omitted). . The Iowa" } ]

[ { "docid": "7204299", "title": "", "text": "the Commission abused its discretion in denying Mountain Solutions a waiver, however, would require retroactive application of the Commission’s second ten-day grace period, an unusual procedure for rulemaking, see, e.g., MCI v. F.C.C., 10 F.3d at 846, and thus hardly a basis to find an abuse of discretion here. Nothing suggests that the Commission would have been any more receptive to waiver requests based upon inability to secure payment for failure to meet its revised payment deadlines than it was to such requests under its original deadline rules. In amending its payment rule the Commission continued to associate strict enforcement of payment deadlines with preservation of “the integrity of the auction and licensing process by ensuring that applicants have the necessary financial qualifications.” Amendment of Part I of the Comm’n’s Rules, 12 F.C.C.R. 5686, ¶ 61. As a result, finding an abuse of discretion would not be based on an alteration of the Commission’s approach toward payment deadlines, but rather would amount to a requirement that the Commission make retroactive the exact number of grace period days presently allowed. The abuse of discretion standard presents a heavy burden for a petitioner in this court. See, e.g., BellSouth, 162 F.3d at 1222. Recognizing the limits of our proper role, see WOKO, 329 U.S. at 228 67 S.Ct. 213, the court has defined the outer limits of such discretion but left to the decision-maker the determination of which of the permissible alternative outcomes should apply in a particular case. Cf Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas, et al. v. Babbitt, 43 F.3d 1491, 1497 (D.C.Cir.1995). Because the Commission explained its reasoning in denying Mountain Solutions’ waiver request, gave fair notice of the importance it attached to meeting payment dates, and acted consistently under the then applicable procedures, we hold that it did not abuse its discretion in denying Mountain Solutions’ waiver request. III. The default penalty rule provides that “when a winning bidder defaults on a license, the bidder becomes subject to a default payment equal to the difference between the amount bid and the winning bid the" } ]

[ { "docid": "16481677", "title": "", "text": "13,1994. Graceba’s challenge was not filed until July 11, 1995. In addition, Graceba’s petition does not demonstrate why it requires financial assistance under our 25 percent bidding credit rule. For example, its petition contains no evidence that it has faced discriminatory financial barriers to entry into the telecommunications industry. Id. at 1285 (footnote and citations omitted). Renewing the arguments made in each of its petitions, Graceba now petitions this Court for review of the Commission’s order. Community Teleplay, Inc., and the Ad Hoe IVDS Coalition, representing a group of IVDS auction participants, intervened in support of Graceba’s constitutional challenge to the bidding credit rule. Because Community Teleplay and members of the Coalition have a petition still pending before the Commission raising an identical claim, however, they must await the conclusion of those proceedings before bringing their claims here. See, e.g., BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.Cir.1994) (party that remains before agency cannot also bring challenge in court). Accordingly, although entertaining Graceba’s petition, we dismiss those of inter-venors. We must affirm the Commission’s order unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (1994). II The Commission’s primary reason for denying Graceba’s second petition — that Graceba did not file it within 30 days of the May 1994 promulgation of the bidding credit rule — cannot support the Commission’s order. Because “administrative rules and regulations are capable of continuing application,” limiting review of a rule to the period immediately following rulemaking “would effectively deny many parties ultimately affected by a rule an opportunity to question its validity.” Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C.Cir.1958). For this reason, we permit both constitutional and statutory challenges to an agency’s application or reconsideration of a previously promulgated rule, even if the period for review of the initial rulemaking has expired. See, e.g., Public Citizen v. NRC, 901 F.2d 147, 152 (D.C.Cir.1990); NLRB Union v. FLRA, 834 F.2d 191, 195-97 (D.C.Cir.1987); Geller v. FCC, 610 F.2d 973, 978 (D.C.Cir.1979); Functional Music, Inc., supra. The Commission applied the bidding" }, { "docid": "9853406", "title": "", "text": "Opinion for the Court filed by Circuit Judge SENTELLE. SENTELLE, Circuit Judge: Petitioners, WorldCom, AT&T, Time Warner Telecom, and other long distance telephone service providers, seek review of the FCC’s Fifth Report and Order and Further Notice of Proposed Rulemaking in In re Access Charge Reform, 14 F.C.C.R. 14221, 1999 WL 669188 (1999) (hereinafter “Order” or “Pricing Flexibility Order”). That order grants local exchange carriers (“LECs”) immediate pricing flexibility for some interstate access services and establishes procedures through 4hieh LECs may seek substantial additional relief from existing price cap regulation. Petitioners maintain that the Order is arbitrary, capricious, and contrary to law in that it violates the FCC’s statutory mandate to ensure “just and reasonable” prices for telecommunication services and promote the public interest. Several LECs — BellSouth, Qwest, SBC Communications, and Verizon — intervene in support of the FCC. We hold that the FCC’s decision to grant additional pricing flexibility to incumbent LECs through a series of collocation based triggers, deregulation of new services, and deaveraging of rates was neither arbitrary and capricious nor contrary to law. The FCC made a reasonable policy determination that collocation was a sufficient proxy for market power in determining whether to grant pricing flexibility to LECs and sufficiently explained the basis for its decision to grant immediate pricing flexibility for some services. For these reasons, we uphold the FCC’s order and deny the petitions for review. I. Background A. Legal and Regulatory Context In recent years, the FCC has sought to facilitate greater competition in the provision of both long-distance and local telephone service. See, e.g., AT&T v. FCC, 220 F.3d 607 (D.C.Cir.2000); Bell Atl. Tel. Cos. v. FCC, 79 F.3d 1195 (D.C.Cir.1996); Nat’l Rural Telecom Ass’n v. FCC, 988 F.2d 174 (D.C.Cir.1993). Competition for telephone services, where it exists, serves the FCC’s statutory goal of ensuring fair and reasonable prices for telecommunications services. Therefore, as telephone markets become more competitive, the FCC has lessened regulatory control over those markets, including the market for interstate access services. It is within this evolving regulatory context that this case arises. 1. Interstate Access Services Local" }, { "docid": "7848088", "title": "", "text": "reduce or eliminate the default penalty assessed by the WTB. Alternatively, BDPCS contends that although the First and Second Supplements were procedurally defective, the Commission nevertheless considered the arguments raised there on their merits, and the arguments are therefore preserved for judicial review. We are unpersuaded by these contentions and deny the petition for review. A. Waiver Requests. Our review of an agency’s denial of a waiver is extremely limited; we vacate such denials only when “the agency’s reasons are so insubstantial as to render that denial an abuse of discretion.” Mountain Solutions, Ltd. v. FCC, 197 F.3d 512, 517 (D.C.Cir.1999) (internal quotation marks omitted). The Commission’s rules allow the grant of a waiver only upon a showing that en-foi'cement of the rule would not serve the rule’s underlying purpose or otherwise would be inequitable, and that a waiver would be in the public interest. 47 C.F.R. §§ 24.819(a)(1)®, (ii) (1996). Tellingly, the Commission’s rules never compel the Commission to grant a waiver. Here, the Commission concluded that the abrupt collapse of BDPCS’s financing did not constitute adequate grounds for a waiver. See Order, 15 F.C.C.R. at 17,605-07 ¶¶ 28-31. The Commission noted that the purpose of the default penalty rule — “central to the integrity of the Commission’s auction process” — was to encourage bidders “to make certain of their qualifications and financial capabilities before the auction so as to discourage default and avoid delays in the deployment of new services to the public.” Id. at 17,606 ¶¶29, 30. BDPCS frustrated this objective when it continued to participate actively in the C1 block auction even after it had become aware that its financing was, at the very least, seriously imperiled. Id. at 17,607 ¶ 31. This course of conduct, the Commission concluded, was exactly “the sort our rules are intended to deter.” Id. The Commission thus denied the waiver request, rejecting outright BDPCS’s argument that such a waiver would serve the public interest. Id. The Commission did not abuse its discretion in denying the waiver request. Far from it. As the Commission pointed out, BDPCS’s behavior in the auction" }, { "docid": "14908262", "title": "", "text": "capricious for the FCC to deny the State’s application for a waiver of the cut-off rule. Because we conclude that the Commission’s- rejection of Oregon’s application as untimely was arbitrary and capricious, we will not address whether the FCC should have granted the petitioner’s waiver request. The FCC enforces its cut-off rules strictly in order to provide a prompt comparative hearing and to ensure that applicants are treated fairly and consistently. Id at 550. We have approved the FCC’s policy of strict enforcement but only “so long as ‘the quid pro quo ... is explicit notice of all applicability requirements.’ ” Id. (quoting Salzer v. FCC, 778 F.2d 869, 875 (D.C.Cir.1985)). As we have explained before, “The dismissal of an application is a sufficiently grave sanction to trigger [the] duty to provide clear notice.” Satellite Broadcasting Co. v. FCC, 824 F.2d 1, 3 (D.C.Cir.1987). Accordingly, we have held that the FCC acts arbitrarily and capriciously “when it reject[s] an application as untimely based on an ambiguous cut-off provision, not clarified , by FCC interpretations, if the applicant made a reasonable effort to comply.” Florida Institute, 952 F.2d at 550. Oregon argues that the FCC acted arbitrarily and capriciously in rejecting its application because the agency failed to give prospective applicants for the Redding station clear notice of the cut-off. date for competing applications. Oregon claims that it reasonably believed that the second “A” list was correct because the Commission’s letter of November 29 had indicated that the agency would take no action on the Foundation’s application for 30 days; the FAIR Report stated that the cut-off date was indeed February 1; and the second “A” list was issued before the first-announced cut-off date — all of which suggests that the Commission was covering an invalid premature notice with a valid one. The Commission, relying upon our subsequent decision in Florida Institute, responds that the duplicative cut-off list could not have created any ambiguity. The Commission contends that because the first “A” list was never retracted, the second “A” list could have no legal effect and therefore could not have misled" }, { "docid": "16173573", "title": "", "text": "have alerted the bankruptcy court that the FCC’s determination as to prompt pay ment was by nature regulatory. Time of payment and amount of payment are alike functions of value. Cf. Thinking Machs. Corp. v. Mellon Fin. Servs. Corp. # 1 (In re Thinking Machs. Corp.), 67 F.3d 1021, 1022 (1st Cir.1995) (“Time is money....”). There can be little doubt that if full payment is a regulatory condition, so too is timeliness. See NextWave Appeal, 200 F.3d at 59-60 (detailing the regulatory purpose behind the FCC’s general insistence on payment according to the terms set at auction, so that the “bids constitute a reliable index of the bidders’ commitments to exploit and make the most of the license at issue”); Mountain Solutions, Ltd. v. FCC, 197 F.3d 512, 522 (D.C.Cir.1999) (“[T]he Commission ... gave fair notice of the importance it attaches to meeting payment dates.... ”); FCC Objection at 2-4. “The Commission has long noted the importance it attaches to timely payment.” Mountain Solutions, 197 F.3d at 519 (citing In re Implementation of Section 309(j) of the Communications Act, (Second Report and Order), 9 F.C.C.R. 2348, ¶ 197, 1994 WL 412167 (FCC April 20, 1994)). We therefore conclude that the FCC’s decision was in fact regulatory. This conclusion is reinforced by the bankruptcy court’s own statement of reasons. In the course of deciding that the FCC’s re-auction decision lacked any regulatory purpose, the bankruptcy court was in effect and in fact questioning the FCC’s regulatory judgments: What regulatory principle or public interest does the FCC invoke to outweigh the investment in these debtors of over $1 billion in debt and equity? What public policy is served by an act of the United States Government which violates basic notions of equity, due process and the Bankruptcy Code? What purpose is served by the FCC’s relinquishment of over $4.7 billion for the C Licenses? How does the [Public Notice] coexist with 47 U.S.C. § 309(j)(3)(A) looking to “rapid deployment” of spectrum “without administrative or judicial delays,” or 47 U.S.C. § 309(j)(7)(A) and (B) prohibiting the FCC from exercising its regulatory discretion “on" }, { "docid": "7204286", "title": "", "text": "(ii) (1996). Under the Administrative Procedure Act, the court-must “‘hold unlawful and set aside agency action’ that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Bell-South Corp. v. F.C.C., 162 F.3d 1215, 1221 (D.C.Cir.1999) (quoting 5 U.S.C. § 706(2)(A)). As to waiver of agency rules, however, the agency’s strict construction of a general rule in the face of waiver requests is insufficient evidence of an abuse of discretion. See, e.g., Bell-South, 162 F.3d at 1225. Instead, “an agency’s refusal to grant a waiver will not be overturned unless the agency’s reasons are ‘so insubstantial as to render that denial an abuse of discretion.’ ” Green Country Mobilephone, Inc. v. F.C.C., 765 F.2d 235, 238 (D.C.Cir.1985) (quoting Thomas Radio Co. v. F.C.C, 716 F.2d 921, 924 (D.C.Cir.1983)). “[T]his burden is a heavy one ...” but “it is carried when an agency arbitrarily waives a deadline in one case but not in another.” Id. (citing WAIT Radio v. F.C.C., 459 F.2d 1203, 1207 (D.C.Cir.1972)); see also BellSouth, 162 F.3d at 1222. Mountain Solutions contends it has met this burden, focusing primarily upon the fact that, of the high bidders in the original C block auction which requested waiver of the second down payment deadline, only it was denied a waiver. Mountain Solutions’ contention that it was treated arbitrarily and capriciously is unpersuasive. Of the bidders granted partial waivers, only Mountain Solutions (by its own admission) lacked funds to make the second down payment on the due date (or one day later). Indeed, when the Bureau was initially confronted with a similar circumstance by Carolina PCS I Limited Partnership, the Bureau denied its waiver request. The Bureau reversed itself only after Carolina had submitted affidavits indicating that it had a firm financial commitment from its lending institution equal to the amount of its second down payment on or about the due date. See In the Matter of Carolina PCS I Ltd. Partnership Request for Waiver of Section 21.711(a)(2) of the Comm’n’s Rules, 12 F.C.C.R. 22938, ¶ 14 (1997). Mountain Solutions, by contrast, had no firm financial" }, { "docid": "19057550", "title": "", "text": "HOLMES, Circuit Judge. Petitioners Council Tree Investors, Inc., a communications investment firm, and Bethel Native Corporation, a small wireless carrier based in Alaska (collectively, “Council Tree”), seek our review of two orders issued by the Federal Communications Commission (“FCC” or “the Commission”) — the D Block Waiver Order (the “Waiver Order”) issued in 2007 and the Waiver Reconsideration Order issued in 2012. In so doing, Council Tree specifically requests nullification of Auction 73, the FCC’s auction of the 700-MHz wireless spectrum conducted in early 2008 pursuant to the Waiver Order. Council Tree filed a Petition for Reconsideration of the Waiver Order (the ‘Waiver Reconsideration Petition”) with the FCC in 2007, as well as a Supplement to the Waiver Reconsideration Petition (the “Supplement”) in 2011. In its Waiver Reconsideration Order, the FCC dismissed the' Waiver Reconsideration Petition as moot and dismissed the Supplement as untimely. For the reasons set forth below, we dismiss Council Tree’s petition, as it pertains to the Waiver Order, and deny its petition, as it relates to the Waiver Reconsideration Order. I The Communications Act of 1934 authorizes the FCC to award licenses to use the electromagnetic spectrum in order to provide communications services. See 47 U.S.C. §§ 307, 309. In 1993, Congress enacted section 309®, which directs the Commission to award spectrum licenses “through a system of competitive bidding,” e.g., by auction. Id. § 309®(1). Pursuant to section 309®, the Commission must design systems of competitive bidding that, among other objectives, “promot[e] economic opportunity and competition ... by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women.” Id. § 309®(3)(B). These statutorily-prescribed groups are commonly referred to as “designated entities,” or “DEs.” To promote the participation of DEs in spectrum-license auctions, the Commission awards “bidding credits” that reduce by a specified percentage the amounts that DEs would otherwise pay for licenses won at auction. 47 C.F.R. § 1.2110(f). To prevent abuse of the bidding-credits system, the Commission is required to seek the “avoidance of" }, { "docid": "6819131", "title": "", "text": "have an “opportunity” to: (a) acquire LMDS licenses immediately in all areas but its existing service area; (b) acquire a LMDS license in its existing service area once three years have passed; (c) bid immediately for a smaller LMDS license (150 megahertz instead of 1,150 me gahertz) in its service area; (d) acquire the LMDS license for its service area as long as the LEC does not provide telephone service to more than ten percent of the population within the basic trading area (“BTA”) assigned to each LMDS license; (e) acquire an in-region LMDS license immediately on the condition that the LEC divest its overlapping telephone interests; and (f) seek a waiver of the eligibility restriction, subsequent to the initial award of LMDS licenses, upon a showing of good cause. See Order ¶¶ 178-80,188, 160. Moreover/section 309(j)(4)(D), like section 309(j)(3)(B), speaks of “spectrum-based services” as a unit, rather than stating that rural telephone compames must have access to each spectrum-based service. Finally, section 309(j)(4)(D) does not mandate that the rural LECs receive preferential treatment in the form of “tax certificates, bidding preferences, and other procedures”; it just instructs the FCC to “consider” that possibility. In short, we do not believe that the present eligibility restriction violates the text or intent of section 309(j)(3)(B) or section 309(j)(4)(D) so as to violate the first prong of the Chevron test. One of the rural LEC petitioners, the National Telephone Cooperative Association (“NTCA”), also makes a brief argument under Chevron’s second prong. NTCA contends that the FCC abused its discretion by ignoring section 309(j)’s concern for rural residents and rural LECs, and the 1996 Telecommunications Act’s overarching desire to foster competition. This argument is baseless for the reasons elaborated elsewhere in this opinion. The FCC’s imposition of the three-year eligibility restriction on rural LECs is fully consistent with a reasonable interpretation of section 309(j), (see II.B.l.), and the Commission has clearly explained its basis for believing that this eligibility restriction will foster competition, see, e.g., Order ¶ 162. 2. The Rural LECs’ Argument That Including Them in the Eligibility Restriction Was Arbitrary and Capricious" }, { "docid": "6819102", "title": "", "text": "provide “unbundled access”); id. § 251(c)(4)(A) (duty “to offer for resale at wholesale rates any telecommunications service that the carrier provides at retail to subscribers who are not telecommunications carriers”). Along the same lines, section 271 of the 1996 Act provides that a Regional Bell Operating Company (“RBOC”) may provide long-distance service, but only after that RBOC has demonstrated that it has met all the requirements for opening its local telephone market to competition and the FCC has found that “the requested authorization is consistent with the public interest, convenience, and necessity.” Id. § 271(d)(3)(C). C. The FCC’s Rulemaking on LMDS On January 8,1993, three years before the passage of the 1996 Telecommunications Act, the FCC released a Notice of Proposed Rule-making that proposed redesignating the 28 GHz spectrum for LMDS. See In the Matters of Rulemaking to Amend Part 1 and 21 of the Commission’s Rules to Redesignate the 27.5-29.5 GHz Frequency Band, 8 F.C.C.R. 557 (released Jan. 8, 1993) (“first NPRM”). This first NPRM stated that the FCC did not propose to adopt cross-ownership restrictions on acquiring LMDS licenses, explaining that: The evidence before us suggests that the most likely first use of the 28 GHz band will be video entertainment programming. ... There is no assurance this will be the case, or that even if it is the predominant use, that it will be the most viable use in all geographic areas. In view of this uncertainty, we are inclined not to exclude any existing video distribution or telecommunications firm from constructing and operating 28 GHz facilities. We seek comment on our tentative policy conclusion that cross-ownership restrictions should not be imposed. Id. ¶33. The FCC then denied the 971 outstanding requests for waivers of the rules that formerly governed use of the spectrum now tentatively designated for LMDS. See id. ¶¶ 51-53. (These rejected waiver applicants had sought to provide point-to-multi-point service on the 28 GHz band, at a time when only point-to-point service was authorized. See id.) Many of the applicants, including all of the petitioners in this case who challenge the waiver denials, petitioned" }, { "docid": "18863635", "title": "", "text": "expects to receive.” See also JEM Broadcasting Co. v. FCC, 22 F.3d 320, 329 (D.C.Cir.1994). However, when the Commission does impose such strict procedural rules, “fundamental fairness ... requires that an exacting application standard, enforced by the severe sanction of dismissal without consideration on the merits, be accompanied by full and explicit notice of all prerequisites for such consideration.” Salzer v. FCC, 778 F.2d 869, 871-72 (D.C.Cir.1985). As far as the cellular applications are concerned, the Commission promulgated a rule prohibiting multiple ownership interests in competing applicants, including ownership interests of less than 1%. The notices that Florida Cellular sent to its shareholders indicate conclusively that the company had actual notice of this rule. See supra at 194. The Commission’s rules and orders also provided notice that applications would be subject to dismissal for failure to comply with the FCC rules and regulations. As the court stated in JEM Broadcasting, Florida Cellular “was entitled to no more than this clear and explicit notice.” 22 F.3d at 329. The Commission need not supply a separate “shopping list” specifying that each separate rule violation may lead to dismissal. It is enough that the FCC rules are clearly spelled out and applicants are on notice that their applications are subject to dismissal for failure to comply with these rules. C. The Commission’s Refusal to Grant Florida Cellular a Waiver Florida Cellular next argues that the Commission abused its discretion when it denied the company’s request for a waiver of 47 C.F.R. § 21.922 that would have permitted the company to repurchase Mr. Yandell’s shares. Generally, “[w]hen an applicant seeks a waiver of a rule, it must plead with particularity the facts and circumstances which warrant such action.” Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d 664, 666 (D.C.Cir.1968). When such a request is “stated with clarity and accompanied by supporting data, [it is] not subject to perfunctory treatment, but must be given a ‘hard look.’ ” WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C.Cir.1969). However, a party challenging the Commission’s refusal to grant a waiver “must show that the agency’s" }, { "docid": "13624252", "title": "", "text": "assume that the funds were available for Port Cell’s venture. From this, the Commission would have the court infer that the FCC’s familiarity with NYNEX’s credit practices was sufficient to demonstrate that NYNEX had assessed the creditworthiness of the loan applicant and that the loan terms would follow a standard pattern. The FCC has authority to waive its rules if there is “good cause” to do so. 47 C.F.R. § 1.3. The FCC may exercise its discretion to waive a rule where particular facts would make strict compliance inconsistent with the public interest. WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C.Cir. 1969). However, as we instructed in WAIT Radio, those waivers must be founded upon an “appropriate general standard.” We held that “sound administrative procedure contemplates waivers ... granted only pursuant to a relevant standard ... [which is] best expressed in a rule that obviates discriminatory approaches.” 418 F.2d at 1159. In remanding WAIT Radio to the agency to formulate an acceptable waiver policy, we held that a waiver is appropriate only if special circumstances warrant a deviation from the general rule and such deviation will serve the public interest. The agency must explain why deviation better serves the public interest and articulate the nature of the special circumstances to prevent discriminatory application and to put future parties on notice as to its operation. See also Industrial Broadcasting Co. v. FCC, 437 F.2d 680 (D.C.Cir.1970) (indicating need for articulation of special circumstances beyond those considered during regular rule-making). The FCC purports to have complied with WAIT Radio in granting its waiver to Port Cell. Yet, it has not even come close to doing so. The FCC Order concluded that waiver under these circumstances would serve the public interest contemplated by the financial requirements provisions. It reasoned that if there is “no speculation” as to the financial qualifications of the tentative selectee, strict enforcement will not serve the regulation’s purpose of reducing delays in cellular service. 4 FCC Red at 2050-51. The FCC’s reasoning wholly ignores the second requirement of WAIT Radio: It does not articulate any standard by which" }, { "docid": "16990969", "title": "", "text": "audit was completed — a Form 582 corrected “in accordance with the findings and recommendations outlined in the ... audit.” After learning about KCPL’s erroneous filing and its belated correction, Westar reviewed its own filings and discovered that, because of errors similar to those made by KCPL, it too had overstated its transmission volumes. On December 18, 2003 Westar filed revised Forms 582 for both 2001 and 2002 and requested a waiver of the December 31, 2002 deadline for correcting the 2001 data. The Commission accepted the revised 2002 report but refused to accept the revised 2001 report because it was filed after the deadline. Westar sought rehearing, which the Commission denied, and then petitioned this court for review. II. Analysis We will set aside a final decision of the Commission only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Commission’s insistence upon strict adherence to its rules is, therefore, permissible unless its reason for refusing to waive a rule is arbitrary, capricious, or “so insubstantial as to render that denial an abuse of discretion.” Mountain Solutions, Ltd. v. FCC, 197 F.3d 512, 517 (D.C.Cir.1999) (quoting Green Country Mobilephone, Inc. v. FCC, 765 F.2d 235, 238 (D.C.Cir.1985)). A fundamental norm of administrative procedure requires an agency to treat like cases alike. If the agency makes an exception in one case, then it must either make an exception in a similar case or point to a relevant distinction between the two cases. Green Country, 765 F.2d at 237-38; NLRB v. Washington Star Co., 732 F.2d 974, 977 (D.C.Cir.1984); cf. Colo. Interstate Gas Co. v. FERC, 850 F.2d 769, 774 (D.C.Cir.1988) (“[T]he Commission’s dissimilar treatment of evidently identical cases ... seems the quintessence of arbitrariness and caprice”). When the Commission denied Westar’s request for a waiver, it made four points: First, “the Commission’s regulations expressly provide that corrections of the information filed on Form No. 582 must be made promptly, by the end of the calendar year in which the information was originally filed.” Second, waiving the deadline would" }, { "docid": "1638266", "title": "", "text": "step-two, to adopt a methodology that serves its other goal of encouraging local competition. TOPUC, 183 F.3d at 412. Petitioners do not satisfy the high evidentiary standard necessary to establish that the Commission acted arbitrarily and capriciously when it produced its interim rules. Second, petitioners’ sufficiency challenge fundamentally misses the goal of the Act. The Act does not guarantee all local telephone service providers a sufficient return on investment; quite to the contrary, it is intended to introduce competition into the market. Competition necessarily brings the risk that some telephone service providers will be unable to compete. The Act only promises universal service, and that is a goal that requires sufficient funding of customers, not providers. So long as there is sufficient and competitively-neutral funding to enable all customers to receive basic telecommunications services, the FCC has satisfied the Act and is not further required to ensure sufficient funding of every local telephone provider as well. Moreover, excessive funding may itself violate the sufficiency requirements of the Act. Because universal service is funded by a general pool subsidized by all telecommunications providers — and thus indirectly by the customers — excess subsidization in some cases may detract from universal service by causing rates unnecessarily to rise, thereby pricing some consumers out of the market. 1. High-cost Loops. Petitioners fail to show that the FCC’s various changes to the universal service support fund for high-cost loops unreasonably fails to provide sufficient funding for universal service or otherwise constitutes an arbitrary and capricious regulation under the Act. First, they object to the agency’s continuation of a cap on growth in the fund, adjusted only for changes in the total number of working loops. The cap’s track record, however, reflects a reasonable balance between the Commission’s mandate to ensure sufficient support for universal service and the need to combat wasteful spending. The agency’s broad discretion to provide sufficient universal service funding includes the decision to impose cost controls to avoid excessive expenditures that will detract from universal service. Petitioners do not show how the FCC has abused that discretion. Second, petitioners object to" }, { "docid": "3524167", "title": "", "text": "services at just, reasonable, and affordable rates. Telecommunications Act, of 1996, Pub.L. No. 104-104 § 254, 110 Stat. 56, 71-75. Under the 1996 Act and the FCC’s implementing regulations, every interstate telecommunications carrier must contribute a portion of its quarterly interstate and international telecommunications revenue to the Universal Service Fund. See 47 C.F.R. §§ 54.706, 54.709. That portion is established by the Commission “on an equitable and nondiscriminatory basis.” 47 U.S.C. § 254(d). The FCC appointed the Universal Service Administrative Company to administer the Fund, 47 C.F.R. § 54.701(a), and to Use the money to support the cost of providing low-cost telecommunications services to schools, libraries, health-care providers, low-income consumers, and subscribers in high cost-areas. See 47 U.S.C. § 254(b); 47 C.F.R. § 54.701(c)(1). One of the many programs administered through the Fund is the Schools and Libraries Program, commonly known as “E-Rate.” See 47 U.S.C. § 254(h)(1)(B). The E-Rate program entitles qualifying schools and libraries to receive Internet and telephone services at discounted rates. See generally United States v. Green, 592 F.3d 1057, 1060-1061 (9th Cir.2010). To receive those discounts, the schools and libraries must first conduct a “competitive bidding process” that is open to all telecommunications service providers. 47 C.F.R. § 54.503(a). As a condition of participation, service providers may only submit bids at or below the “lowest corresponding price” offered by the company. Id. § 54.511(b). That is the “lowest price that a service provider charges to nonresidential customers who are similarly situated.” Id. § 54.500(f); see also 47 U.S.C. § 254(h)(1)(B) (the rates charged must be “less than the amounts charged for similar services to other parties”). The schools and libraries must then select the most cost-effective service ■ from among those bids. 47 C.F.R. § 54.511(a). Once the schools and libraries have reached an agreement with a service provider, they can submit a request for funding approval to the Universal Service Administrative Company. Id. § 54.504(a). Once the agreement is approved, the Company will either reimburse the school or library for its payments to the service provider, or will pay the service provider’s invoices directly." }, { "docid": "6819132", "title": "", "text": "the form of “tax certificates, bidding preferences, and other procedures”; it just instructs the FCC to “consider” that possibility. In short, we do not believe that the present eligibility restriction violates the text or intent of section 309(j)(3)(B) or section 309(j)(4)(D) so as to violate the first prong of the Chevron test. One of the rural LEC petitioners, the National Telephone Cooperative Association (“NTCA”), also makes a brief argument under Chevron’s second prong. NTCA contends that the FCC abused its discretion by ignoring section 309(j)’s concern for rural residents and rural LECs, and the 1996 Telecommunications Act’s overarching desire to foster competition. This argument is baseless for the reasons elaborated elsewhere in this opinion. The FCC’s imposition of the three-year eligibility restriction on rural LECs is fully consistent with a reasonable interpretation of section 309(j), (see II.B.l.), and the Commission has clearly explained its basis for believing that this eligibility restriction will foster competition, see, e.g., Order ¶ 162. 2. The Rural LECs’ Argument That Including Them in the Eligibility Restriction Was Arbitrary and Capricious The rural telephone companies also argue that the FCC has failed to supply a reasoned basis in the record for its decision to include the rural LECs in the LMDS eligibility restriction. They accordingly contend that the application of the in-region eligibility restriction to rural telephone companies is arbitrary and capricious, an abuse of discretion, and otherwise contrary to law. a. The Claim That the FCC Lacks Support for its Predictions and That the Commission’s Actions Fail to Satisfy the FCC’s Stated Objectives The rural telephone companies engage in the same error that the LECs committed: They assert that the FCC was required to establish “that limiting rural telephone company participation is necessary to ensure that rural America receives LMDS at reasonable charges.” Rural LEC Brief, at 13-14 (emphasis added). The rural LECs do not locate this requirement in any statute, but instead point to a statement in the FCC’s Order that appears in the introduction to the Commission’s explanation of its decision to impose an eligibility restriction: Our overall goal in assessing the need" }, { "docid": "19057581", "title": "", "text": "(“Th[is] court has discouraged the [FCC] from accepting late petitions in the absence of extremely unusual circumstances.”). The Commission’s action here in dismissing the Supplement, in our view, is a reasonable application of this regulatory preference. In sum, we have considered the Commission’s stated reasons for rejecting Council Tree’s contentions that it could not have filed the Supplement earlier and that the Supplement was merely an extension of the original Waiver Reconsideration Petition. We conclude that the Commission did not abuse its discretion by dismissing the Supplement and that its dismissal was not arbitrary or capricious. HI For the foregoing reasons, we DISMISS Council Tree’s petition for review, as it pertains to the Waiver Order, and DENY its petition, as it relates to the Waiver Reconsideration Order. . Although FCC rules define “designated entities\" to include “businesses owned by members of minority groups and/or women,” 47 C.F.R. § 1.2110(a), the FCC has eliminated DE benefits based on the race or gender of an applicant’s owners after the Supreme Court ruled in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), that certain federal affirmative-action programs were unconstitutional. See Omnipoint Corp. v. FCC, 78 F.3d 620, 633 (D.C.Cir.1996) (upholding an FCC rule change that eliminated race- and gender-based provisions in its competitive-bidding rules). Since Adarand, bidding credits have been available only to eligible small businesses, based on specific size standards. See, e.g., Sioux Valley Rural Television, Inc. v. FCC, 349 F.3d 667, 669-73 (D.C.Cir.2003). . Although the Minority Media and Telecommunications Council participated in the Third Circuit litigation regarding the DE Second Report & Order, it is not a petitioner before us in this case. . Although the FCC had issued an earlier (first) Order on Reconsideration to clarify certain aspects of the new DE rules, it did not formally deny the petition for expedited reconsideration until its second reconsideration order. Cf. Council Tree I, 503 F.3d at 286 (\"The Reconsideration Order did not expressly grant or deny the petition, but essentially rejected all of the arguments contained therein.”). . Of course, Council Tree had" }, { "docid": "19957487", "title": "", "text": "v. FCC, 897 F.2d 1164 (D.C.Cir.1990), before the FCC can invoke its good cause exception, it both “must explain why deviation better serves the public interest, and articulate the nature of the special circumstances to prevent discriminatory application and to put future parties on notice as to its operation,” id. at 1166. The reason for this two-part test flows from the principle “that an agency must adhere to its own rules and regulations,” and “[a]d hoc departures from those rules, even to achieve laudable aims, cannot be sanctioned, for therein lie the seeds of destruction of the orderliness and predictability which are the hallmarks of lawful administrative action.” Reuters Ltd. v. FCC, 781 F.2d 946, 950-51 (D.C.Cir.1986). This basic tenet is especially appropriate in the context of filings. When an agency imposes a strict deadline for filings, as the FCC has done, many meritorious claims are not considered; that is the nature of a strict deadline. The power to waive that strict deadline is substantial, because it allows an agency to decide which meritorious claims get considered. The inverse is true too — the power to waive allows an agency to decide which otherwise liable parties are off the hook. The criteria used to make waiver determinations are essential. If they are opaque, the danger of arbitrariness (or worse) is increased. Complainants the agency “likes” can be excused, while “difficult” defendants can find themselves drawing the short straw. If discretion is not restrained by a test more stringent than “whatever is consistent with the public interest (by the way, as best determined by the agency),” then how to effectively ensure power is not abused? The “special circumstances” requirement is that additional restraint. Otherwise, we are left with “nothing more than a ‘we-know-it-when-we-see-it’ standard,” and “future [parties] — and this court — have no ability to evaluate the applicability and reasonableness of the Commission’s waiver policy.” Northeast Cellular, 897 F.2d at 1167. We accept that the public interest is well-served by NET’s compensating PSPs, but that is not enough. There must also be a sufficiently “unique ... situation.” Id. at 1166." }, { "docid": "14968365", "title": "", "text": "an ink blotter waiting for this Court’s rubber stamp to validate agency action. Notwithstanding the FCC’s mantra-like incantations of “deference,” we find the record to be insufficient to support the Cellular eligibility rules at issue. Although the FCC is correct in pointing out that its predictive judgments are entitled to a fair degree of deference, Wold Communications, Inc. v. Federal Communications Comm’n, 735 F.2d 1465, 1468 (D.C.Cir.1984) (citation and quotation omitted), it does not have “unfettered discretion” in its regulatory powers. Id. at 1475. It must supply a reasoned basis explaining why it chose to adopt a certain rule or rules. Schurz Communications, Inc. v. Federal Communications Comm’n, 982 F.2d 1043, 1049 (7th Cir.1992). Post-hoe rationalization is not a suitable substitute for reasoned rulemaking, and support for the agency’s action must exist in the rulemaking record. Coastal Tank Lines, Inc. v. Interstate Commerce Comm’n, 690 F.2d 537, 543 (6th Cir.1982) (citing Burlington Truck Lines, Inc., 371 U.S. at 168, 83 S.Ct. at 245-46). As in Schurz Communications, the question in this ease is not whether the FCC has the authority to place certain restrictions on the bidding process, but whether the FCC “has said enough to justify, in the face of the objections lodged with it, the particular restrictions that it imposed .... ” Schurz Communications, Inc., 982 F.2d at 1049. Unfortunately, the FCC has not, in its brief nor at oral argument before this Court, pointed to anything in the record which would justify its Cellular eligibility restrictions. The FCC argues that it relied on a General Accounting Office report which found that the current wireless communications markets were not fully competitive and recommended the allocation of spectrums to new firms rather than existing Cellular providers. See GAO, Concerns About Competition in the Cellular Telephone Industry, 2-4 (1992). However, the GAO report is no better than the FCC’s asserted justifications in providing any factual support for its conclusions. The report contains broadly stated “findings” that the Cellular market is less than optimally competitive, and generalized conclusions about the need to restrict Cellular interests from obtaining Personal Communications Service licenses." }, { "docid": "7204285", "title": "", "text": "parties inconsistent, and undermining the supposed policy basis behind the Commission’s treatment of Mountain Solutions; (2) the Commission’s revision of its second down payment rule during the pendency of Mountain Solutions’ waiver request to make the deadline more flexible indicates that denial of Mountain Solutions’ waiver request was unnecessarily harsh and the purported policy basis behind this refusal disingenuous; and (3) the unique circumstances of Mountain Solutions’ case renders strict application of the second down payment rule inequitable and contrary to the public interest. According to the Commission’s rule: Waivers will not be granted except upon an affirmative showing: (i) That the underlying purpose of the rule will not be served, or would be frustrated, by its application in a particular case, and that grant of the waiver is otherwise in the public interest; or (ii) That the unique facts and circumstances of a particular case render application of the rule inequitable, unduly burdensome or otherwise contrary to the public interest. Applicants must also show the lack of a reasonable alternative. 47 C.F.R. § 24.819(a)(l)(i), (ii) (1996). Under the Administrative Procedure Act, the court-must “‘hold unlawful and set aside agency action’ that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Bell-South Corp. v. F.C.C., 162 F.3d 1215, 1221 (D.C.Cir.1999) (quoting 5 U.S.C. § 706(2)(A)). As to waiver of agency rules, however, the agency’s strict construction of a general rule in the face of waiver requests is insufficient evidence of an abuse of discretion. See, e.g., Bell-South, 162 F.3d at 1225. Instead, “an agency’s refusal to grant a waiver will not be overturned unless the agency’s reasons are ‘so insubstantial as to render that denial an abuse of discretion.’ ” Green Country Mobilephone, Inc. v. F.C.C., 765 F.2d 235, 238 (D.C.Cir.1985) (quoting Thomas Radio Co. v. F.C.C, 716 F.2d 921, 924 (D.C.Cir.1983)). “[T]his burden is a heavy one ...” but “it is carried when an agency arbitrarily waives a deadline in one case but not in another.” Id. (citing WAIT Radio v. F.C.C., 459 F.2d 1203, 1207 (D.C.Cir.1972)); see also BellSouth, 162 F.3d at" }, { "docid": "6819165", "title": "", "text": "petitioner] is even heavier. It must show that the Commission’s reasons for declining to grant the waiver were so insubstantial as to render that denial an abuse of discretion.” Id. at 1499 (citations omitted); see also Orange Park Florida T.V., Inc. v. FCC, 811 F.2d 664, 669 (D.C.Cir.1987) (“[I]t is elemen tary that the judiciary may disturb a Commission refusal to waive its rules only in the event of an abuse of discretion.”)- In Turro, the FCC had “concluded that it was preferable to address the policy concerns raised by Turro in a rulemaking proceeding and not in the context of an ad hoc waiver proceeding.\" Turro, 859 F.2d at 1500. The court found that “[t]his decision to proceed by rulemak-ing is entitled to considerable deference.” Id. In this case, the FCC had received hundreds of waiver requests — 971 in total — seeking authority to provide point-to-multipoint services on the 28 GHz band, rather than the point-to-point services then-authorized. See first NPRM ¶¶ 51-53. The FCC also had pending before it three petitions for rulemak-ing, two supporting the designation of the 28 GHz band for point-to-multipoint services, and one opposing such a designation. See id. ¶¶ 1-13. The Commission denied the waiver requests as a group and proceeded instead with notice and comment rulemaking on the use of the spectrum at issue. As the FCC explained, it had concluded, based on the number of waiver applications and the size of their requests for spectrum space, that granting the waivers would result in a de facto reassignment of the 28 GHz band — a band that other parties wanted to use for different, incompatible purposes. See id. ¶¶ 51-53; Order ¶ 388. Moreover, the Commission found that the waivers raised common policy questions, involving both the best use of the 28 GHz band and the additional rules that would be needed to govern new uses of that band, questions that would best be addressed in a rulemaking proceeding. See Order ¶¶ 389,402-04,406. The FCC’s reasoning in this regard was not only rational, but highly sound. The 971 waiver applicants were" } ]

[ { "docid": "10361738", "title": "", "text": "fund, or the debtor, as the case may be, relieved from the danger of a double liability for the same demand. Crane v. McDonald, 118 N. Y. 648, 654, 23 N. E. 991; Bassett v. Leslie, 123 N. Y. 396, 399, 25 N. E. 386; B. & O. R. R. Co. v. Arthur, 90 N. Y. 234, 237; Dorn v. Fox, 61 N. Y. 264; 23 Cyc. 3, 4; Hoggart v. Cutts, Cr. & Ph. 197, 204, 10 L. J. Ch. 314, 18 Eng. Ch. 197; Wing v. Spaulding, 64 Vt. 83, 86, 23 Atl. 615; Wells Fargo & Co. v. Miner et al. (C. C.) 25 Fed. 533, 537; Clark v. Smith, 13 Pet. 203, 10 L. Ed. 123; McWhirter v. Halsted (C. C.) 24 Fed. 828; Louisiana State L. Co. v. Clark (C. C.) 16 Fed. 20. It is essential to the maintenance of such an action that there be a specific fund or property, or a debt owing, or a duty to be performed, and that the plaintiff in the action of interpleader does not dispute his liability to some one therefor. If it be a fund or a debt, owing, the amount thereof as claimed by at least one of the parties must be conceded by the plaintiff (Baltimore & O. R. R. Co. v. Arthur, 90 N. Y. 234); i and there must be a reasonable ground of uncertainty as to which claimant is the one entitled thereto, and the plaintiffs, the party owing the debt or holding the fund, must be without adequate remedy at law (Bassett v. Leslie, 123 N. Y. 396, 399, 25 N. E. 386; Morgan v. Fillmore, 18 Abb. Prac. [N. Y.] 217; Trigg v. Hitz, 17 Abb. Prac. [N. Y.] 436; M. & H. R. R. Co. v. Clute, 4 Paige, 384; Crane v. McDonald, 118 N. Y. 648, 23 N. E. 991). The controversy or dispute must be as to the title or ownership of the particular fund or indebtedness. And an action for interpleader will not lie where the establishment of the plaintiff’s liability to the one" } ]

[ { "docid": "8760950", "title": "", "text": "Pusey & Jones Co. v. Miller (C. C.) 61 Fed. 401; Stephenson & Coon v. Burdett, 56 W. Va. 109, 48 S. E. 846, 10 L. R. A. (N. S.) 748; Groves v. Sentell, 153 U. S. 465, 486, 14 Sup. Ct. 898, 38 L. Ed. 785; 3 Street’s Fed. Eq. Prac. § 2243: 1 Foster’s Fed. Prac. (4th Ed.) § 89; 1 Story’s Eq. Pldg. (8th Edd § 297b; 5 Pomeroy’s Eq. Tur. (1 Eq. Rem.) § 60; 2 Daniell’s Ch. Pldg. & Prac. (5th Am. Ed.) 1495; 11 Ency. PL & Pr. 479. The complainants were the agents of F. M. McDonald, now deceased, for the purpose of making purchases of cotton,, grain, and securities. For that purpose they received deposits of money from McDonald. The account between complainants and McDonald is made an exhibit to the bill. It shows more than 100 items of debit and 121 items of credit. The former range in amount from 25 cents to $1,677.47, and the latter from 20 cents to $2,125.40. The account, as exhibited by the complainants, shows a balance against them of $1,175.90, which they offer to pay into court; but the bill shows that •McDonald's administrator claims, as due him on account growing out of the transactions, $5,727.49, and the defendant Hartman claims $2,500 due him by virtue of transactions with the deceased, McDonald, relating to the fund held by the complainants. Hartman’s claim is derived from McDonald, deceased. Suits at law have been brought by the defendants for these sums, respectively. It is apparent from the averments of the bill that an accounting will be necessary to ascertain the true amount of the complainant’s liability. This necessity could have been shown by more formal averments; but no objection has been made to the bill in this regard. The bill contains no special prayer for an accounting, as is usual in such cases; but it contains a prayer for general relief, and, on such prayer, any relief may be had that the averments of the bill may warrant. Kelly v. Payne, 18 Ala. 371. The particular relief" }, { "docid": "2577031", "title": "", "text": "stand in the same stead as the $2,138.26 item, and were in this litigation, the same rules would be applied. In any event, no reason is apparent why a depositor should object if his bank honors one of his ehecks and dishonors others, if his balance was insufficient to pay them all. These settled principles determine this case. The attempted reversal of the charge of $2,138.26 was ineffective. The St. Joseph bank is liable to the Topeka bank for the amount collected by it with interest from the date of collection. The St. Joseph bank is liable to tbe receiver for the balance in the account of the Holton bank, after effect is given to all charges properly made, with interest from the date of demand. The sum paid into court, with interest accretions if any, may properly he used to discharge such liabilities, when determined, as far as it may reach. The balance, if any, is collectible on execution. Judgment affirmed. Courts of respectable authority have adopted Pomeroy’s statement that the requisites of an action in interpleader are (1) a substantial dispute among the defendants as to the ownership of or right to a particular fund or specific property; (2; the adverse claims must be derived from a common source; (3) the plaintiff must have incurred no independent liability to any claimant, but must stand, as a neutral stakeholder, indifferently between them; (4) if the hazard which plaintiff seeks to avoid has been occasioned by his own act, he is not entitled to the remedy. Pomeroy’s Eq. Juris., vol. IV, § 1459, et seq.; Calloway v. Miles (C. C. A. 6) 30 F.(2d) 14; Morgan v. Kraft, 52 App. D. C. 172, 285 F. 906; Hayward & Clark v. McDonald (C. C. A. 5) 192 F. 890; Wells, Fargo & Co. v. Miner (C. C. Cal.) 25 F. 533; McWhirter v. Halsted (C. C. N. J.) 24 F. 828; Bedell v. Hoffman, 2 Paige (N. Y.) 199. It lias also been held that a bill of interpleader will not lie unless the establishment of plaintiff’s liability to one claimant" }, { "docid": "1374769", "title": "", "text": "the suit is brought. The equitable remedy of interpleader has certain essential elements. We mention only those material here: First — If the hazard which plaintiff seeks to avoid has been occasioned by his own act ho is not entitled to the remedy. Pomeroy’s Equity Jurisprudence, vol. 4, § 1473, p. 3478; Connecticut Mutual Life Ins. Co. v. Tucker, 23 R. I. 1, 4, 49 A. 26, 91 Am. St. Rep. 590; Jax Ice & Coal Storage Co. v. South Florida Farms Co., 91 Fla. 593, 608, 109 So. 212, 48 A. L. R. 957. Second — The plaintiff must be a stakeholder only. He must stand indifferent between the claimants, and must have incurred no independent liability to either of them. Pomeroy’s Eq. Jurisp. vol. 4, § 1464, p. 3461; Story’s Eq. Pl. § 297, p. 292; Gibson’s Suits in Chancery, § 717, p. 640; Killian v. Ebbinghaus, 110 U. S. 568-574, 4 S. Ct. 232, 28 L. Ed. 246. In Standley v. Roberts (C. C. A.) 59 F. 841, Judge Sanborn said: “No case for an interpleader can bo made whore the holder or debtor has made an independent, personal agreement with some of the claimants regarding tho subject-matter claimed, so that he is under a liability to them beyond that which arises from the title to tho subject-matter,” and in this connection, oven if he has in any way made himself Hablo for the sum demanded to two claimants, ho is not entitled to an interpleader. Pomeroy’s Eq. Jur. § 1460, p. 3456; Jax Ice & Coal Storage Co. v. South Florida Farms Co., supra; Connecticut Mutual Life Ins. Co. v. Tucker, supra; Montpelier v. Capital Savings Bank, 75 Vt. 437, 56 A. 89, 98 Am. St. Rep. 834. Third — If plaintiff knows to which of the claimants he can rightfully or safely pay, and thus protect himself, or if the hazard to which he conceives himself to be exposed has no reasonable foundation, he cannot maintain this equitable remedy. Pomeroy’s Eq. Jur. vol. 4, § 1459, p. 3452; Id., § 1461, p. 3457; Daniell, Chancery" }, { "docid": "2577032", "title": "", "text": "action in interpleader are (1) a substantial dispute among the defendants as to the ownership of or right to a particular fund or specific property; (2; the adverse claims must be derived from a common source; (3) the plaintiff must have incurred no independent liability to any claimant, but must stand, as a neutral stakeholder, indifferently between them; (4) if the hazard which plaintiff seeks to avoid has been occasioned by his own act, he is not entitled to the remedy. Pomeroy’s Eq. Juris., vol. IV, § 1459, et seq.; Calloway v. Miles (C. C. A. 6) 30 F.(2d) 14; Morgan v. Kraft, 52 App. D. C. 172, 285 F. 906; Hayward & Clark v. McDonald (C. C. A. 5) 192 F. 890; Wells, Fargo & Co. v. Miner (C. C. Cal.) 25 F. 533; McWhirter v. Halsted (C. C. N. J.) 24 F. 828; Bedell v. Hoffman, 2 Paige (N. Y.) 199. It lias also been held that a bill of interpleader will not lie unless the establishment of plaintiff’s liability to one claimant will defeat his liability to the other, or if the amount clue from plaintiff is the subject of controversy, Smith v. Mosier (C. C. N. Y.) 169 F. 430; Morgan v. Kraft, supra; and that inter-pleader will not lie by an agent against his principal and a third party claiming the fund by an independent title. Hayward & Clark v. McDonald, supra. If the principal claims some interest in the subject matter, but there are conflicting claimants to the part to which plaintiff asserts no claim, it has been held that an action in the nature of interpleader will lie. Groves v. Sentell, 153 U. S. 465, 486, 14 S. Ct. 898, 38 L. Ed. 785; Hayward & Clark v. McDonald, supra. Cited with approval in Dakin v. Bayly, 290 U. S. 143, 54 S. Ct. 113, 78 L. Ed. 229." }, { "docid": "2302593", "title": "", "text": "that it will be subject to double vexation in respect of one liability and be exposed to the danger of having judgments rendered against it in the garnishment proceedings, although it may prevail as against Fleming. The argument is persuasive. As the appeal is only from an interlocutory order, extended discussion is unnecessary. A bill in the nature of a bill of interpleader, such as this is, will lie where a party is threatened with a multiplicity of suits and double vexation in respect of one liability, although he may at the same time seek to defeat all or part of the claim against himself. Groves v. Sentell, 153 U. S. 465,14 S. Ct. 898, 38 L. Ed. 785; Cleveland v. Insurance Co. of North America, 151 Ala. 191, 44 So. 37; Alexander City Bank v. Home Ins. Co., 214 Ala. 544, 108 So. 369. As between the Phoenix Assurance Company as plaintiff, and Fleming - and the attaching creditors as defendants, we think the bill will lie. The plaintiff also contends that all of the insurance companies have a community of interest, and the bill is brought on their behalf as persons similarly situated. We do not agree with this contention. There is no privity between plaintiff and the other insurance companies, nor is there any right of contribution among them. The liability of each is fixed by the total loss, 'of which each must bear its pro rata, according to the face of the policy issued. It is possible that judgments differing in amount may be rendered against the various insurance companies, but a judgment against one will not affect the others. Of course, it would be more convenient and tend to better promote the ends of justice to have the entire litigation settled in one suit, but there is not sufficient community of interest to warrant one of them bringing a bill on behalf of all. Scruggs & Echols v. Am. Cent. Ins. Co. (C. C. A.) 176 F. 224, 36 L. R. A. (N. S.) 92; Equitable Life Assur. Society v. Brown, 213 U. S. 25," }, { "docid": "8760948", "title": "", "text": "protected against the claims of both. Bedell v. Hoffman, 2 Paige (N. Y.) 199. It is sometimes held that, as a general rule, to sustain such a bill, it must appear that the complainant- has incurred no independent liability to either claimant. If the relation of principal and agent exists between the plaintiff and a defendant, that, it is said, creates an independent liability of the agent to the principal, and he could not, therefore, maintain a bill of interpleader against his principal and a third person claiming the fund by independent title. But it is settled that if such third person’s title was not independent, but was derived from the principal, the other named conditions existing, such bill may be maintained. 4 Pomeroy’s Eq. Jur. (3d Ed.) §§ 1326, 1327; Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; Pearson v. Cardon, 11 Eng. Ch. 605. So much for bills of interpleader strictly so called. Innumerable cases occur that have some of the features of a bill of inter-pleader, but have, in addition, other features that do not come within the definition of bills of interpleader. A complainant is not to be deprived of equitable relief, if entitled to it on other equitable grounds, because his case has some, but not all. of the attributes of interpleader in equity. For example, and to refer to a class of cases analogous to the one at bar, a complainant may have in his hands property or money to which others have conflicting claims, in reference to which property or conflicting claims the complainant may have equitable rights or claims and be entitled to equitable relief. In such case, while he cannot maintain a bill of interpleader strictly so called, he is nevertheless entitled to relief, and is permitted to maintain a bill in the nature of a bill of interpleader. Darden’s Adm’r v. Burn’s Adm’r, 6 Ala. 362; Van Winkle v. Owen, 54 N. J. Eq. 253, 34 Atl. 400; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige (N. Y.) 384; Nofsinger v. Reynolds, 52 Ind. 218, 225;" }, { "docid": "13442714", "title": "", "text": "against the fund. See Stusser v. Mutual Union Ins. Co., 127 Wash. 449, 221 P. 331, 333.; Pope v. Missouri Pac. Ry. Co. (Mo. Sup.) 175 S. W. 956, 957. Moreover, if it succeeds in defeating their claims against its assured, there will be about $6,-000 left in the registry of the court after payment of tho Klaber judgment, to which the company alone will have a claim,. Our conclusion is that the bill is not one whieh comes within, the Interpleader Aet, and that the court therefore was clearly without authority to enjoin Klaber from proceeding with his garnishment, and could not compel those defendants who were citizens of states other than Nebraska to interplead. It does not necessarily follow, however, that because the bill was not within the statute and that the decree was therefore erroneous in the particulars mentioned, the appellants were entitled to a dismissal of the suit. The jurisdictional amount is involved, and there is diversity of citizenship. Therefore, if the bill, although not one of statu tory interpleader, may be sustained as a bill in the nature of a bill of interpleader, it should not be dismissed. A stakeholder who is not indifferent may maintain such a bill. McNamara v. Provident Sav. Life Assur. Soc. of N. Y. (C. C. A. 5) 114 F. 910; Knickerbocker Trust Co. v. City of Kalamazoo (C. C.) 182 F. 865; Hayward & Clark v. McDonald (C. C. A. 5) 193 F. 890; Sherman Nat. Bank of N. Y. v. Shubert Theatrical Co. (C. C. A. 2) 247 F. 250; Groves v. Sentell, 153 U. S. 465, 485, 486, 14 S. Ct. 898, 38 L. Ed. 785; Fleming v. Phoenix Assur. Co. (C. C. A. 5) 40 F.(2d) 38; 15 R. C. L. 233. The general rule, however, is that the only material difference between a true bill of interpleader and a bill in the nature of a bill of interpleader is that in the latter the plaintiff may show that he has an interest in the subject of the controversy between the defendants. 15 R. C. L." }, { "docid": "13442701", "title": "", "text": "v. Merritt, 145 Minn. 428, 177 N. W. 770; Maxwell v. Frazier, 52 Or. 183, 96 P. 548, 18 L. R. A. (N. S.) 102, 104. And the bill must show that each of the defendants claims a right, and such a right as they may inter-plead for. Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1136; Pusey & Jones Co. v. Miller (C. C.) 61 F. 401, 403; Kahn v. Garvan (D. C.) 263 F. 969, 915. If the plaintiff denies his liability to any of the defendants, he is not entitled to the remedy; he destroys the very foundation upon which it rests. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1325, and note. The bill must show that all of the requisites entitling the plaintiff to the remedy exist in the ease. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1328. An averment that the plaintiff is disinterested is necessary. In Killian v. Ebbinghaus, 110 U. S. 568, 571, 4 S. Ct. 232, 233, 28 L. Ed. 246, the court said: “The bill is either a bill of interpleader or a bill in the nature of a bill of inter-pleader. It is clear that it cannot be sustained as a bill of interp leader. In such a bill it is necessary to aver that the complainant has no interest in the subject-matter of the suit; he must admit title in the claimants and aver that he is indifferent between them, and he cannot seek relief in the premises against either of them.” And in Groves v. Sentell, 153 U. S. 465, 485, 14 S. Ct. 898, 905, 38 L. Ed. 785, the court said: “The general rule is that a party who has an interest in the subject-matter of the suit cannot filo a ‘bill of interpleader,’ strictly so called. In fact, the assertion of perfect disinterestedness is an essential ingredient of such a bill.” The federal courts always have had jurisdiction to entertain bills of interpleader where the amount in controversy was sufficient and the other essentials of jurisdiction were present. “Interpleader in the United States" }, { "docid": "21326252", "title": "", "text": "jurisdiction to award relief against them on the ancillary bill. The answer to this, however, is that under the federal practice a person does not, by filing a claim with a receiver, make himself a party to the original cause. Elkins v. First Nat. Bank of City of New York (C. C. A. 4th) 43 F.(2d) 777; Acme White Lead & Color Works v. Republic Motor Truck Co. (D. C.) 285 F. 88; Jones & Laughlins v. Sands (C. C. A. 2d) 79 F. 913; Youtsey v. Hoffman (C. C.) 108 F. 693; Sands v. E. S. Greeley & Co. (C. C.) 80 F. 195; Clark on Receivers, vol. 1, p. 717. And where an ancillary bill, as does the bill here, brings in new parties to the original suit and charges new matter as a basis of relief, the proceeding as against such new parties is an original, not an ancillary, proceeding, and they must be properly served with process to give the court jurisdiction. Dunn v. Clarke, 8 Pet. 1, 8 L. Ed. 845; Smith v. Woolfolk, 115 U. S. 143, 148, 5 S. Ct. 1177, 29 L. Ed. 357; G. & C. Merriam Co. v. Saal-field, 241 U. S. 22, 36 S. Ct. 477, 60 L. Ed. 868; Manning v. Berdan (C. C.) 132 F. 382; Bowen v. Christian (C. C.) 16 F. 729; Hart v. Wiltsee, supra. A case very much in point is Whelan v. Enterprise Transp. Co. (C. C.) 164 F. 95, 98, a decision by Circuit Judge Lowell. That case involved a petition which was filed by a receiver of an insolvent corporation and was treated by consent as a plenary suit in equity ancillary to the principal receivership suit. Recovery was asked against one Paige for moneys collected by him which were alleged to be the property of the corporation. Paige had filed a claim with the receiver. The court held that, although the federal court would have jurisdiction of an action against Paige as being ancillary to the main suit, the remedy at law was adequate and suit in equity could" }, { "docid": "13442715", "title": "", "text": "be sustained as a bill in the nature of a bill of interpleader, it should not be dismissed. A stakeholder who is not indifferent may maintain such a bill. McNamara v. Provident Sav. Life Assur. Soc. of N. Y. (C. C. A. 5) 114 F. 910; Knickerbocker Trust Co. v. City of Kalamazoo (C. C.) 182 F. 865; Hayward & Clark v. McDonald (C. C. A. 5) 193 F. 890; Sherman Nat. Bank of N. Y. v. Shubert Theatrical Co. (C. C. A. 2) 247 F. 250; Groves v. Sentell, 153 U. S. 465, 485, 486, 14 S. Ct. 898, 38 L. Ed. 785; Fleming v. Phoenix Assur. Co. (C. C. A. 5) 40 F.(2d) 38; 15 R. C. L. 233. The general rule, however, is that the only material difference between a true bill of interpleader and a bill in the nature of a bill of interpleader is that in the latter the plaintiff may show that he has an interest in the subject of the controversy between the defendants. 15 R. C. L. 233, 234; Stephenson v. Burdett, 56 W. Va. 109, 48 S. E. 846, 10 L. R. A. (N. S.) 748; Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1140; 33 C. J. 424. We think that, at the time the company filed its bill, it was not in a position to require the other defendants to interplead with Klaber. They were not demanding anything of it, and whether they would ever be in a position to demand anything of it was purely conjectural. The indemnity provided by the policy was then adequate to meet any existing liability of or claim against the company, and no showing was or could then be made that there were or would be claims aggregating more than $10,-000 against it. The company’s denial • of liability for its assured and its defense of all suits and claims leaves it in a poor position, to treat those seeking judgments against its assured- as claimants against it for the purpose of interpleader. The effect of the decree appealed from is to prevent" }, { "docid": "1374768", "title": "", "text": "answered, and thereupon each filed an answer to the answer of the other and the caso proceeded to a final hearing. The original suits against plaintiff were thus diverted into a contest between the defendants. The plaintiff introduced no testimony. The court held that Albert Miles, administrater, was entitled to the fund and directed its payment to Mm and discharged tho plaintiff. The defendant, Mi's. Calloway, appealed and assigned errors. A careful review has convinced us that tho bill should have been dismissed. It cannot be sustained upon the record as a bill of interpleader. Section 41, subsec. 26, of title 28, U. S. C., carried into tho Code from the Act of February 22, 1917, c. 113, as amended by the Act of February 25, 1925, c. 317, does not change the equitable principles controlling interpleader. It is jurisdictional only. It simply confers jurisdiction upon the District Court “of suits in equity begun by bills of interpleader,” where adverse claimants of insurance are residents of different states with one residing in the district where the suit is brought. The equitable remedy of interpleader has certain essential elements. We mention only those material here: First — If the hazard which plaintiff seeks to avoid has been occasioned by his own act ho is not entitled to the remedy. Pomeroy’s Equity Jurisprudence, vol. 4, § 1473, p. 3478; Connecticut Mutual Life Ins. Co. v. Tucker, 23 R. I. 1, 4, 49 A. 26, 91 Am. St. Rep. 590; Jax Ice & Coal Storage Co. v. South Florida Farms Co., 91 Fla. 593, 608, 109 So. 212, 48 A. L. R. 957. Second — The plaintiff must be a stakeholder only. He must stand indifferent between the claimants, and must have incurred no independent liability to either of them. Pomeroy’s Eq. Jurisp. vol. 4, § 1464, p. 3461; Story’s Eq. Pl. § 297, p. 292; Gibson’s Suits in Chancery, § 717, p. 640; Killian v. Ebbinghaus, 110 U. S. 568-574, 4 S. Ct. 232, 28 L. Ed. 246. In Standley v. Roberts (C. C. A.) 59 F. 841, Judge Sanborn said: “No" }, { "docid": "7069481", "title": "", "text": "in this construction. To apply that rule to the present case would be begging the question, because, with reference to this contract, no state court has so held, and such construction appears to me quite unjustifiable. As to the third defense, and generally: The bill by paragraph 41 makes a basis for relief in the nature of interpleader, although such relief is not specifically prayed. This is a formality, and it should be . considered as asked for. A bill of interpleader, strictly so called, will not lie where complainant claims any interest in the subject-matter (Killian v. Ebbinghaus, 110 U. S. 571, 4 Sup. Ct. 232, 28 L. Ed. 246), but equitable relief, analogous to interpleader, will often be granted in aid of complainant’s interest, when there are other interconflicting interests (Street’s Fed. Eq. Pr. § 2235; Killian v. Ebbinghaus, 110 U. S. 572, 4 Sup. Ct. 232, 28 L. Ed. 246; Pacific National Bank v. Mixter, 124 U. S. 729, 8 Sup. Ct. 718, 31 L. Ed. 567; Groves v. Sentell, 153 U. S. 485, 14 Sup. Ct. 898, 38 L. Ed. 785; Provident Soc. v. Roeb [C. C.] 115 Fed. 359). The only difference indicated by any of these cases between the procedure and relief appropriate to a strict bill of interpleader and to those analogous bills, is that in the latter the complainant cannot receive nontaxable costs out of the fund. Groves v. Sentell, supra. In Blair v. Chicago, 201 U. S. 400, 26 Sup. Ct. 427, 50 L. Ed. 801, the Supreme Court approved the filing of a bill to settle a dispute with a city concerning the meaning, obligations, and performance of a street railway franchise; and, while that bill was filed by receivers in possession of the property, it seems to justify the present bill as in the nature of a bill of interpleader, if it be once conceded that a mortgagee has a property right for the protecting of which it may resort to an equity court. I conclude, therefore, that this case is a proper one for relief in the nature" }, { "docid": "13442700", "title": "", "text": "Jurisprudence (14th Ed.) vol. 2, § 1118. The essential elements of the equitable remedy of interpleader are: (1) The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded. (2) All their adverse titles or claims must be dependent, or be derived from a common source. (3) The plain!iff must not have nor claim any interest in the subject-matter. (4) He must have incurred no independent liabilfly to either of the claimants and must stand perfectly indifferent between them, in the position merely of a stakeholder. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1322; Wells, Fargo & Co. v. Miner (C. C.) 25 F. 533. See, also, Calloway v. Miles (C. C. A. 6) 30 F.(2d) 14; Connecticut General Life Ins. Co. v. Yaw (D. C.) 53 F.(2d) 684. A bill of interpleader cannot he maintained by any person who does not show two or more claimants in existence capable of interpleading. Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1136; Alton & Peters v. Merritt, 145 Minn. 428, 177 N. W. 770; Maxwell v. Frazier, 52 Or. 183, 96 P. 548, 18 L. R. A. (N. S.) 102, 104. And the bill must show that each of the defendants claims a right, and such a right as they may inter-plead for. Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1136; Pusey & Jones Co. v. Miller (C. C.) 61 F. 401, 403; Kahn v. Garvan (D. C.) 263 F. 969, 915. If the plaintiff denies his liability to any of the defendants, he is not entitled to the remedy; he destroys the very foundation upon which it rests. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1325, and note. The bill must show that all of the requisites entitling the plaintiff to the remedy exist in the ease. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1328. An averment that the plaintiff is disinterested is necessary. In Killian v. Ebbinghaus, 110 U. S. 568, 571, 4 S. Ct. 232, 233, 28 L. Ed. 246, the court said: “The" }, { "docid": "13442702", "title": "", "text": "bill is either a bill of interpleader or a bill in the nature of a bill of inter-pleader. It is clear that it cannot be sustained as a bill of interp leader. In such a bill it is necessary to aver that the complainant has no interest in the subject-matter of the suit; he must admit title in the claimants and aver that he is indifferent between them, and he cannot seek relief in the premises against either of them.” And in Groves v. Sentell, 153 U. S. 465, 485, 14 S. Ct. 898, 905, 38 L. Ed. 785, the court said: “The general rule is that a party who has an interest in the subject-matter of the suit cannot filo a ‘bill of interpleader,’ strictly so called. In fact, the assertion of perfect disinterestedness is an essential ingredient of such a bill.” The federal courts always have had jurisdiction to entertain bills of interpleader where the amount in controversy was sufficient and the other essentials of jurisdiction were present. “Interpleader in the United States Courts,” Chafes, Yale Law Journal, vol. 41, p. 1134, cont’d in vol. 42, page 41. There were, however, two reasons why their jurisdiction frequently proved ineffective. First, under the general provisions of law a United States District Court cannot issue process beyond the limits of the District, and a defendant in a civil suit can, be subjected to its jurisdiction in personam only by service within the District. Toland v. Sprague, 12 Pet. 300, 330, 9 L. Ed. 1093; Herndon v. Ridgway, 17 How. 424, 15 L. Ed. 100; New York Life Insurance Co. v. Bangs, 103 U. S. 435, 26 L. Ed. 580; Munter v. Weil Corset Co., 261 U. S. 276, 279, 43, S. Ct. 347, 67 L. Ed. 652; Robertson v. Railroad Labor Board, 268 U. S. 619, 623, 45 S. Ct. 621, 69 L. Ed. 1119. Second, the District Courts are without authority to stay pro ceedings in a state court unless expressly authorized by Congress. There are exceptions to this rule whieh are not here involved. The statute forbidding such" }, { "docid": "8760951", "title": "", "text": "by the complainants, shows a balance against them of $1,175.90, which they offer to pay into court; but the bill shows that •McDonald's administrator claims, as due him on account growing out of the transactions, $5,727.49, and the defendant Hartman claims $2,500 due him by virtue of transactions with the deceased, McDonald, relating to the fund held by the complainants. Hartman’s claim is derived from McDonald, deceased. Suits at law have been brought by the defendants for these sums, respectively. It is apparent from the averments of the bill that an accounting will be necessary to ascertain the true amount of the complainant’s liability. This necessity could have been shown by more formal averments; but no objection has been made to the bill in this regard. The bill contains no special prayer for an accounting, as is usual in such cases; but it contains a prayer for general relief, and, on such prayer, any relief may be had that the averments of the bill may warrant. Kelly v. Payne, 18 Ala. 371. The particular relief may be asked for on the hearing. Story’s Eq. PI. § 41. The relation between agent and principal is fiduciary in its character, and, in proper cases, may, in itself, confer jurisdiction in equity. Morris & Co. v. Whitley, 183 Fed. 764, 106 C. C. A. 206; 1 Pomeroy’s Eq. Jur. (3d Ed.) § 186, p. 236. In Winfield v. Bacon, 24 Barb. (N. Y.) 154, it was held that one, having a fund in his hands which he holds in a fiduciary capacity and for which two claimants are suing separately, may bring an action in the nature of a bill of interpleader against the rival claimants. In the case at bar there is an additional equity, for it appears that an accounting may be required to determine the amount of the fund. Blythe v. Whiffin, 27 L. T. (N. S.) 330; Hatfield et al. v. McWhorter, 40 Ga. 269. When it is considered that a relation of trust exists between the complainants and McDonald’s estate as to the fund held by them, and" }, { "docid": "13442699", "title": "", "text": "§ 1320; Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1116; Standley v. Roberts, 59 F. 836; 841 (C. C. A. 8). The stakeholder applies to the court to protect him not only from having to pay or deliver the thing claimed to the several claimants, but also from the vexation of suits which are or may be instituted against him by them. The true origin of the jurisdiction is that there is no remedy at law or that the legal remedy is inadequate. The ground upon which the plaintiff comes into equity is that, claiming no right in the subject-matter himself, he is or may be vexed by having two or more suits brought by different persons going on against him at the same time, and therefore that justice requires that those persons, claiming that to which he makes no claim and with reference to which he has no interest except to rid himself of it, should settle their controversy among themselves and not with him or at his expense and hazard. Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1118. The essential elements of the equitable remedy of interpleader are: (1) The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded. (2) All their adverse titles or claims must be dependent, or be derived from a common source. (3) The plain!iff must not have nor claim any interest in the subject-matter. (4) He must have incurred no independent liabilfly to either of the claimants and must stand perfectly indifferent between them, in the position merely of a stakeholder. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1322; Wells, Fargo & Co. v. Miner (C. C.) 25 F. 533. See, also, Calloway v. Miles (C. C. A. 6) 30 F.(2d) 14; Connecticut General Life Ins. Co. v. Yaw (D. C.) 53 F.(2d) 684. A bill of interpleader cannot he maintained by any person who does not show two or more claimants in existence capable of interpleading. Story’s Equity Jurisprudence (14th Ed.) vol. 2, § 1136; Alton & Peters" }, { "docid": "14471568", "title": "", "text": "We assume, for the purposes of this case, that such judgment could not be rendered iri a purely inter-pleader suit, where the plaintiff was merely seeking to pay a fund into court and to compel claimants thereto to litigate as between themselves a controversy with which he had no concern. Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680. In such case the sole primary issue would be whether plaintiff was entitled to a decree that defendants interplead. If so, he would step out; if not, his bill would be dismissed. But such was not the situation at least under the new bill, which we identify as “supplemental,” and by which, on a complete change of front, appellant sought cancellation of his notes and relief from all liability thereon. The sole ultimate issue, then, was whether or not he was bound to pay his notes. If so, it logically followed that their holders were entitled in some proceeding to enforce their payment. Dong before the adoption of general equity rule No. 30 (201 Fed. v. 118 C. C. A. v), it was the established rule that a court of equity, which has properly acquired jurisdiction of the subject-matter for a necessary purpose, ordinarily should, for the purpose of putting an end to litigation, proceed to do final and complete justice between the parties, even though this required it to determine purely legal rights that otherwise would not be within the range of its authority—provided such relief could as well be given there as by a proceeding at law. Tayloe v. Merchants’ Fire Ins. Co., 9 How. 390, 404, 13 L. Ed. 187; Eames v. Home Ins. Co., 94 U. S. 621, 24 L. Ed. 298; Camp v. Boyd, 229 U. S. 530, 552, 33 Sup. Ct. 785, 57 L. Ed. 1317; Springfield Co. v. Barnard Co. (C. C. A. 8) 81 Fed. 261, 263-265, 26 C. C. A. 389. The principles declared in these cases apply to the case before us. In Tayloe v. Insurance Co., uuder a bill in equity involving the establishment of a contract of" }, { "docid": "8760949", "title": "", "text": "other features that do not come within the definition of bills of interpleader. A complainant is not to be deprived of equitable relief, if entitled to it on other equitable grounds, because his case has some, but not all. of the attributes of interpleader in equity. For example, and to refer to a class of cases analogous to the one at bar, a complainant may have in his hands property or money to which others have conflicting claims, in reference to which property or conflicting claims the complainant may have equitable rights or claims and be entitled to equitable relief. In such case, while he cannot maintain a bill of interpleader strictly so called, he is nevertheless entitled to relief, and is permitted to maintain a bill in the nature of a bill of interpleader. Darden’s Adm’r v. Burn’s Adm’r, 6 Ala. 362; Van Winkle v. Owen, 54 N. J. Eq. 253, 34 Atl. 400; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige (N. Y.) 384; Nofsinger v. Reynolds, 52 Ind. 218, 225; Pusey & Jones Co. v. Miller (C. C.) 61 Fed. 401; Stephenson & Coon v. Burdett, 56 W. Va. 109, 48 S. E. 846, 10 L. R. A. (N. S.) 748; Groves v. Sentell, 153 U. S. 465, 486, 14 Sup. Ct. 898, 38 L. Ed. 785; 3 Street’s Fed. Eq. Prac. § 2243: 1 Foster’s Fed. Prac. (4th Ed.) § 89; 1 Story’s Eq. Pldg. (8th Edd § 297b; 5 Pomeroy’s Eq. Tur. (1 Eq. Rem.) § 60; 2 Daniell’s Ch. Pldg. & Prac. (5th Am. Ed.) 1495; 11 Ency. PL & Pr. 479. The complainants were the agents of F. M. McDonald, now deceased, for the purpose of making purchases of cotton,, grain, and securities. For that purpose they received deposits of money from McDonald. The account between complainants and McDonald is made an exhibit to the bill. It shows more than 100 items of debit and 121 items of credit. The former range in amount from 25 cents to $1,677.47, and the latter from 20 cents to $2,125.40. The account, as exhibited" }, { "docid": "8760947", "title": "", "text": "If a plaintiff has money in his hands which is claimed by two or more persons, and the plaintiff has no claim to it himself, and has incurred no independent liability to either of the claimants, so that he is indifferent between them, a mere stakeholder, .and is sued for, or is threatened with suit for, the fund by the rival claimants, his remedy is to file a bill of interpleader. In such case he would obtain a decree permitting him to deposit the money in court and be discharged, with his costs, and the defendants would be required to interplead and contest their rights to the fund. So, in brief, it may be said that a bill of inter-pleader, strictly so called, is one in which the complainant claims no relief against either of the defendants, and only asks that he may be at liberty to pay the money or deliver the property to the court, to be awarded to the one to whom it of right belongs, and that he may thereafter be protected against the claims of both. Bedell v. Hoffman, 2 Paige (N. Y.) 199. It is sometimes held that, as a general rule, to sustain such a bill, it must appear that the complainant- has incurred no independent liability to either claimant. If the relation of principal and agent exists between the plaintiff and a defendant, that, it is said, creates an independent liability of the agent to the principal, and he could not, therefore, maintain a bill of interpleader against his principal and a third person claiming the fund by independent title. But it is settled that if such third person’s title was not independent, but was derived from the principal, the other named conditions existing, such bill may be maintained. 4 Pomeroy’s Eq. Jur. (3d Ed.) §§ 1326, 1327; Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; Pearson v. Cardon, 11 Eng. Ch. 605. So much for bills of interpleader strictly so called. Innumerable cases occur that have some of the features of a bill of inter-pleader, but have, in addition," }, { "docid": "11847167", "title": "", "text": "As such we have a right to review them.” The Flush, 277 F. 25 (C. C. A. 2), was a libel of a steamship. An order substituting attorneys, granting inspection by new attorneys of papers held by old attorney and leaving for future adjudication the matter of the lien and compensation of the old attorney held final and appealable. In Bank of Taiwan v. Gorgas-Pierie Mfg. Co., 273 F. 660 (C. C. A. 3), an order directing interpleader held final. The court (page 661) says: “The order aligns the parties, prescribes the method of procedure, and — as it will presently be seen — finally denies to one of the parties the right to assert a contract obligation against another. We regard the order as final within the meaning of the statute, and, accordingly, deny the motion to dismiss the appeal. Killian v. Ebbinghaus, 110 U. S. 568, 4 S. Ct. 232, 28 L. Ed. 246; Standley v. Roberts, 59 F. 836, 8 C. C. A. 305; Hayward & Clark v. McDonald, 192 F. 890, 113 C. C. A. 368; McNamara v. Provident Sav. Soc., 114 F. 910, 52 C. C. A. 530; Huxley v. Pennsylvania Warehousing & Safe Deposit Co., 184 F. (C. C. A. 3d) 705, 106 C. C. A. 659.” In Bankers’ Trust Co. v. M., K. & T. Ry. Co., 251 F. 789 (this court), an order consolidating a foreclosure suit and extending thereto an existing receivership on condition that it he taken as a consent by the trustee in the foreclosure suit to all administration orders theretofore, made in the receivership held final and appealable. The court (page 797) says: “The conclusion is that, as the appellant was entitled to both the right of review of the administrative orders in question by an appeal from the final order or decree that shall be made in the causes, and also to the receiver and the impounding of the income for the benefit of its bondholders, and as the clause of the order under discussion completely deprived it of one of these rights, it was a final" } ]

[ { "docid": "3718470", "title": "", "text": "stay from the lifting of the automatic stay, followed by the sale of debtor’s property, did not moot the debtor’s subsequent appeal because the creditor-purchaser was before the court. Springpark, 623 F.2d at 1379 (distinguishing In re Royal Properties, 621 F.2d 984, where the purchaser was a third party). In such a case, we said in Springpark, “it would not be impossible for the Court to fashion some sort of relief.” Id. This exception to the rule is especially appropriate here, where the foreclosure sale is subject to statutory rights of redemption. Where the assets sold were shares of stock, we said that “the fact that the purchaser is a party to [an] appeal does not change the applicability of the mootness rule.” Algeran, 759 F.2d at 1424. But the existence of statutory rights of redemption indicates a difference between the sale of stock and the sale of real property. Based on equitable principles, redemption has long provided a means for reversing sales of real property. Where, as here, the creditor-purchaser is before the court, the court could exercise similar equitable principles and reverse the sale. We decline to follow the Eleventh Circuit’s contrary position. See In re Matos, 790 F.2d 864, 866 (11th Cir.1986); In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d 1294, 1296 (11th Cir.1984). Sun Valley’s appeal is therefore not moot. 2. Giving Immediate Effect to the Court’s Order On September 18, 1986, when the district court upheld the magistrate’s lifting of the automatic stay, it did not stay its order for ten days as permitted under Bankruptcy Rule 8017(a): “Judgments of the district court ... are stayed until the expiration of 10 days after entry, unless otherwise ordered by the district court _” (emphasis added). During what would otherwise have been the ten-day stay of the district court’s order, Equitable obtained a writ of execution for a foreclosure sale, an action that Sun Valley contends should have been void. Because the Rule by its terms gives the district court discretion to make its order effective immediately, the Court of Appeals will review this matter" } ]

[ { "docid": "18845462", "title": "", "text": "notify the debtor of the continuance and the case was dismissed on the trustee’s motion for failure to amend the plan as requested. Soon after the dismissal the creditor held a sale of the security. BAP held that the original order dismissing the ease was void because it was in violation of the debtor-appellee’s due process rights to notice. In re Krueger, 88 B.R. at 241-42. Furthermore, BAP held that because the original order dismissing the case was void, the stay was in effect continuously from the date the petition was filed. Id. The Krueger case is distinguishable from the instant action. In our case, the bankruptcy judge held a hearing on his order to show cause why the case should not be dismissed on December 2, 1985. Therefore, appellant was given notice and a hearing before the case was dismissed. This is not a case where appellant was denied an opportunity to be heard before the dismissal. Appellant knew the case was dismissed and filed a motion for reconsideration soon after the dismissal. Appellant could have availed herself of the provision for a stay pending appeal. Moreover, appellant does not allege due process violations with respect to the dismissal order nor are any uncovered upon review of the case. Therefore, the instant case is distinguishable and Krueger does not apply. As a result of the foregoing analysis, the court concludes that the automatic stay terminated upon dismissal of Weston Bankruptcy I, and the subsequent foreclosure sale by appellees was not in violation of the automatic stay. B. Real Property Issues are Moot. The general rule is that an appeal is moot when an appellant has failed to obtain a stay from an order that permits a sale of a debtor’s assets. In re Onouli-Kona Land Co., 846 F.2d 1170, 1171 (9th Cir.1988). This rule developed from: (1) the general rule that an occurrence of events which prevent an appellate court from granting effective relief renders an appeal moot; and (2) the particular need for finality in orders regarding stays in bankruptcy. In re Onouli-Kona Land Co., 846 F.2d at" }, { "docid": "7623338", "title": "", "text": "stay would be meaningless. Since this Court would be unable to grant any effective relief even if we were to reverse the bankruptcy court’s Relief Order, we conclude that the appeal is moot. We note that the Ninth Circuit has “carved out a narrow exception” to the general rule that a foreclosure sale moots an appeal of an order lifting the automatic stay absent a stay pending appeal, “where real property is sold to a creditor who is a party to the appeal.” Sun Valley Ranches, Inc. v. Equitable Life Ass. Soc’y of the United States (In re Sun Valley Ranches, Inc.), 823 F.2d 1373, 1375 (9th Cir.1987). In that case, the court stated that under such circumstances it is “ ‘not ... impossible for the Court to fashion some sort of relief.’ ” Id (quoting Matter of Springpark Assoc., 623 F.2d 1377 (9th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980)). The court went on to explain that: This exception to the rule is especially appropriate here, where the foreclosure sale is subject to statutory rights of re-demption____ Based on equitable principles, redemption has long provided a means for reversing sales of real property. Where, as here, the creditor-purchaser is before the court, the court could exercise similar equitable principles and reverse the sale. We decline to follow the Eleventh Circuit’s contrary position. See In re Matos, 790 F.2d 864, 866 (11th Cir.1986); In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d 1294, 1296 (11th Cir.1984). Id; accord Onouli-Kona Land Co., 846 F.2d at 1172-73 (reaffirming Sun Valley); see Sullivan Center Plaza, 914 F.2d at 734; but see Oakville Dev. Corp., 986 F.2d at 615. The Debtor essentially argues that this exception applies, claiming that this appeal is not moot because it has a right to redeem the property that was sold at the foreclosure sale from the Appellee. We reject both the Debtor’s argument and the holding in Sun Valley. The court in Sun Valley bases its ability to afford relief, i.e., setting aside a foreclosure sale, on redemption rights or “equitable" }, { "docid": "5166363", "title": "", "text": "occurrence of events which prevent an appellate court from granting relief ... renders an appeal moot, and the particular need for finality in orders regarding stays in bankruptcy.” Algeran, 759 F.2d at 1424. The Ninth Circuit has also stated that “these alternative rationales — the ‘general rule’ and the ‘particular need’ — have produced some tension in our case law.” In re Onouli-Kona Land Co., 846 F.2d at 1172. Indeed, it is not difficult to envision a situation in which the two concepts conflict. For example, if a creditor who purchases the property at foreclosure is a party to the appeal, the appellate court may be able to fashion some relief for the debtor. Yet, an advocate of the need for finality would argue that the appeal should be dismissed to protect the good faith purchaser, who might be the creditor or someone to whom the creditor subsequently resells. Clearly, however, a sale to a third party at foreclosure would moot an appeal. Whatever may be the parameters of the mootness rule (a discussion of which is forthcoming in this opinion), one noteworthy item is that the mootness rule has achieved partial codification from its judicial creation which does not apply to the appeal at bar. The mootness rule first appeared in former Bankruptcy Rule 805, when a sentence was added to the existing Rule mooting an appeal when a debtor failed to obtain a Stay Pending Appeal and the creditor sold to a good faith purchaser. Rule 805, however, did not survive the 1983 changes to the Bankruptcy Rules. Currently, the mootness rule is partially codified at 11 U.S.C. § 363(m), a successor in some respects to Rule 805, but that provision applies only to sales by bankruptcy trustees. It does not apply to other foreclosure sales in bankruptcy proceedings, such as may occur when the bankruptcy court lifts the 11 U.S.C. § 362 Automatic Stay, allowing the creditor to foreclose its lien. See In re Onouli-Kona Land Co., 846 F.2d at 1172; In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d 1294, 1295 n. 2 (11th Cir.1984)." }, { "docid": "5166362", "title": "", "text": "v. Mottaz, 539 F.2d 637, 641 (7th Cir.1976); In re Abingdon Realty Corp., 530 F.2d 588, 590 (4th Cir.1976). Thus, the judiciary created bankruptcy’s mootness rule. Although the mootness rule was originally premised on the notion that an appellate court was unable to fashion relief to a debtor once a foreclosure sale had occurred, another concept later emerged particular to the needs of purchasers at foreclosure. This concept was the need for finality. Finality is important because it provides purchasers at foreclosure with the security of knowing that prolonged litigation will not ensue. It provides finality to orders of bankruptcy courts and protects good faith purchasers. See, e.g., In re Onouli-Kona Land Co., 846 F.2d 1170, 1172-73 (9th Cir.1988); In re Sax, 796 F.2d 994, 998 (7th Cir.1986); Markstein v. Mas sey Assoc., Ltd., 763 F.2d 1325, 1327 (11th Cir.1985); In re Vetter Corp., 724 F.2d 52, 55 (7th Cir.1983) (quoting 14 Collier on Bankruptcy ¶ 11-62.03, at 11-62-11 (14 ed. 1976)). The Ninth Circuit has termed these two concepts “the general rule that the occurrence of events which prevent an appellate court from granting relief ... renders an appeal moot, and the particular need for finality in orders regarding stays in bankruptcy.” Algeran, 759 F.2d at 1424. The Ninth Circuit has also stated that “these alternative rationales — the ‘general rule’ and the ‘particular need’ — have produced some tension in our case law.” In re Onouli-Kona Land Co., 846 F.2d at 1172. Indeed, it is not difficult to envision a situation in which the two concepts conflict. For example, if a creditor who purchases the property at foreclosure is a party to the appeal, the appellate court may be able to fashion some relief for the debtor. Yet, an advocate of the need for finality would argue that the appeal should be dismissed to protect the good faith purchaser, who might be the creditor or someone to whom the creditor subsequently resells. Clearly, however, a sale to a third party at foreclosure would moot an appeal. Whatever may be the parameters of the mootness rule (a discussion of" }, { "docid": "15127782", "title": "", "text": "action generally cannot affect the rights of a good faith purchaser of the foreclosed property, unless the debtor stays the foreclosure sale pending an appeal. See Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1171-73 (9th Cir.1988); Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1423-24 (9th Cir.1985). Accordingly, the debtor’s failure to obtain a stay normally renders the appeal moot. Algeran, 759 F.2d at 1423. This is true even when the purchaser knows of the pendency of the appeal or, as in this case, is a party to the appeal. See id. at 1424. There are, however, two situations in which failure to obtain a stay will not render an appeal moot: where real property is sold to a creditor subject to the right of redemption, see Phoenix Bond & Indem. Co. v. Shamblin (In re Shamblin), 890 F.2d 123, 125 n. 1 (9th Cir.1989); Onouli-Kona Land, 846 F.2d at 1172-73; and where state law would otherwise permit the transaction to be set aside. See Rosner, 811 F.2d at 1228. We consider whether Mann’s case fits into either of these wrinkles to the mootness rule. 1. In order to cure a default under a deed of trust, the trustor must pay the entire amount then due the beneficiary within the statutory period of redemption. Anderson v. Heart Fed. Sav., 208 Cal.App.3d 202, 256 Cal.Rptr. 180, 185-86 (1989). In California, the period for redemption runs from the time the foreclosure sale is noticed until five business days before the sale is scheduled to take place, but may never be less than three months. See Cal.Civ.Code §§ 2924c(b)(l) & (e); Smith v. Allen, 68 Cal.2d 93, 436 P.2d 65, 65 Cal.Rptr. 153, 155 (1968). ADI noticed the sale on May 9, 1986, and scheduled it for September 10, 1986. Mann did not cure the default. Instead, he filed his Chapter 11 petition on September 8, 1986, just two days prior to the scheduled sale date. Generally, the filing of bankruptcy will stay all proceedings relating to a foreclosure sale, including the running of" }, { "docid": "13912731", "title": "", "text": "court cannot at this time restore the status quo or grant any relief even if the district court did err in not applying Fed.R.Civ.P. 62(a). We therefore will not rule on the issue of whether the automatic stay provision of the sale is applicable to Chapter X proceedings; any such decision on our part would be in effect an advisory opinion. Id. at 192. Since Combined Metals was decided, we consistently have affirmed the importance of finality in bankruptcy sales. See In re Onouli-Kona Land Co., 846 F.2d 1170, 1172 (9th Cir.1988) (“Finality in bankruptcy has become the dominant rationale for our decisions; the trend is towards an absolute rule that requires appellants to obtain a stay before appealing a sale of assets.”). We have applied the mootness rule whether or not the purchaser is a party to the appeal or the purchaser has taken irreversible steps following the sale. Id. Indeed, we have recognized only two exceptions to the section 363(m) mootness rule: (1) where real property is sold subject to a statutory right of redemption, and (2) where state law otherwise would permit the transaction to be set aside. In re Mann, 907 F.2d 923, 926 (9th Cir.1990). Our cases strongly suggest that, even if Bankruptcy Rule 7062 had not been amended, Rule 62(a) would have no application to judicially authorized sales of estate property in bankruptcy proceedings. By its terms, Rule 62(a) applies only to the “execution” or “enforcement” of a judgment. The Debtor is aided by Bankruptcy Rule 9002(5), which provides that as used in those Federal Rules of Civil Procedure made applicable to bankruptcy cases the term “judgment” includes “any order ap-pealable to an appellate court.” We doubt, however, that the sale at issue here can be characterized as the execution or enforcement of a judgment. In Travelers Insurance Co. v. Lawrence, 509 F.2d 83 (9th Cir.1974), this court discussed at length the difference between execution sales and judicial sales. We noted five distinctions, the most important of which is that “no levy or seizure is required in a judicial sale” because the property is" }, { "docid": "18845463", "title": "", "text": "could have availed herself of the provision for a stay pending appeal. Moreover, appellant does not allege due process violations with respect to the dismissal order nor are any uncovered upon review of the case. Therefore, the instant case is distinguishable and Krueger does not apply. As a result of the foregoing analysis, the court concludes that the automatic stay terminated upon dismissal of Weston Bankruptcy I, and the subsequent foreclosure sale by appellees was not in violation of the automatic stay. B. Real Property Issues are Moot. The general rule is that an appeal is moot when an appellant has failed to obtain a stay from an order that permits a sale of a debtor’s assets. In re Onouli-Kona Land Co., 846 F.2d 1170, 1171 (9th Cir.1988). This rule developed from: (1) the general rule that an occurrence of events which prevent an appellate court from granting effective relief renders an appeal moot; and (2) the particular need for finality in orders regarding stays in bankruptcy. In re Onouli-Kona Land Co., 846 F.2d at 1172 (quoting Algeran Inc. v. Advance Ross Corp., 759 F.2d 1421, 1424 (9th Cir.1985)). There are two exceptions where the general rule is inapplicable. First, there is a narrow exception to the general rule when real property is sold to a creditor who is a party to the appeal and the sale is subject to statutory rights of redemption. In re Onouli-Kona Land Co., 846 F.2d at 1173. In the present case the property was sold non-judicially and therefore it is not subject to the statutory right of redemption. Therefore, this exception is inapplicable. The second exception is that the mootness rule operates only when the purchaser bought an asset in good faith. Id. Lack of good faith is defined as “fraud, collusion ... or an attempt to take grossly unfair advantage of other bidders.” Id. Appellant does not allege that appellees did not act in good faith but rather she alleges that they clearly violated the stay provision. This allegation seems to be premised on the argument that the automatic stay was still in" }, { "docid": "5166366", "title": "", "text": "went further by making the existence of a statutory right of redemption a flat requirement, in In re Onouli-Kona Land Co., stating that finality in bankruptcy had become the “dominate rationale” in its decisions. 846 F.2d at 1172-73. Thus, the Ninth Circuit’s very narrow exception requires that real property be bought by a creditor who is a party to the appeal and that statutory rights of redemption exist under controlling state law. Id. In contrast, the Eleventh Circuit has flatly refused any exception to the mootness rule, even where a creditor who purchases property at foreclosure is a party to the appeal. Markstein, 763 F.2d at 1327; In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d at 1296. Thus, the Ninth and Eleventh Circuits disagree on whether there should exist any exception to the mootness rule. Indeed, the Ninth Circuit has so stated: “We decline to follow the Eleventh Circuit’s contrary position.” In re Sun Valley Ranches, Inc., 823 F.2d at 1375. This court, of course, seeks Fifth Circuit authority. Appellant, in its Motion to Dismiss Appeal as Moot, cites In re Bleaufontaine, Inc., 634 F.2d 1383 (5th Cir.1981), in support of the application of the mootness rule to the case at bar. Bleaufontaine, however, is of little help. That case was decided under former Bankruptcy Rule 805. The main point is that the Fifth Circuit in Bleaufontaine considered the mootness rule only in the context of its mandatory application pursuant to former Rule 805. The Fifth Circuit’s only task in Ble-aufontaine, with respect to the mootness rule, was to review the bankruptcy court’s factual finding that the purchaser had acted in good faith within the meaning of former Rule 805. The Fifth Circuit neither considered the mootness rule outside of the context of former Rule 805, which is the situation at bar since § 363(m) is inapplicable, nor framed any possible exception to the mootness rule. This court has found a significant Fifth Circuit case cited by neither Appellant nor Appellee which is somewhat factually dissimilar to the instant appeal, but which contains very significant dicta. In American" }, { "docid": "18845464", "title": "", "text": "1172 (quoting Algeran Inc. v. Advance Ross Corp., 759 F.2d 1421, 1424 (9th Cir.1985)). There are two exceptions where the general rule is inapplicable. First, there is a narrow exception to the general rule when real property is sold to a creditor who is a party to the appeal and the sale is subject to statutory rights of redemption. In re Onouli-Kona Land Co., 846 F.2d at 1173. In the present case the property was sold non-judicially and therefore it is not subject to the statutory right of redemption. Therefore, this exception is inapplicable. The second exception is that the mootness rule operates only when the purchaser bought an asset in good faith. Id. Lack of good faith is defined as “fraud, collusion ... or an attempt to take grossly unfair advantage of other bidders.” Id. Appellant does not allege that appellees did not act in good faith but rather she alleges that they clearly violated the stay provision. This allegation seems to be premised on the argument that the automatic stay was still in effect, whereas, as discussed above, the automatic stay was terminated. Because appellant does not allege that the purchase was not in good faith, and because there is no evidence that appellees acted with a lack of good faith, the mootness rule controls. The bankruptcy court entered an order dismissing the case. The dismissal order permitted appellant’s property to be sold by non-judicial foreclosure. Appellant did not obtain a stay pending appeal of the dismissal order. Because the property was non-judicially foreclosed and sold when there was no stay in effect, the property was not part of the estate. Therefore, assuming arguendo that appellant’s arguments have merit, the matters relating to the real property are moot because the real property was sold when no stay was in effect. Consequently, this court is unable to grant appellant effective relief. C. The Bankruptcy Court had Jurisdiction to Approve the Settlement and Compromise Agreement. The bankruptcy court issued an order granting appellees’ motion for approval of compromise and settlement on March 29, 1988. Appellant argues that the bankruptcy court" }, { "docid": "7623336", "title": "", "text": "rely.’” Lashley, 825 F.2d at 364 (quoting Markstein v. Massey Assoc. Ltd, 763 F.2d 1325, 1327 (11th Cir.1985)). More importantly, it serves to insure the • integrity of judicial mootness doctrines “that the occurrence of events which prevent an appellate court from granting effective relief renders an appeal moot.” Algeran, 759 F.2d at 1424, quoted in Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1172 (9th Cir.1988); see Sullivan Central Plaza, 914 F.2d at 733-34 & n. 7. The Tenth Circuit has not published an opinion on the issue before this Court. But see Coones v. Mutual Life Ins. Co. (In re Coones), 56 F.3d 77, 1995 WL 316153, at *3 (10th Cir.1995) (table) (“ ‘The classic example of mootness in the bankruptcy context is a case in which the debtor has failed to seek a stay of foreclosure and the debtor’s property has been sold.’” (quoting Baker & Drake, Inc. v. Public Serv. Comm’n (In re Baker & Drake, Inc.), 35 F.3d 1348, 1351 (9th Cir.1994))); see also Pueblo Bank & Trust Co. v. Steele, 110 F.3d 74, 1997 WL 153777, at *5 (10th Cir.1997) (table) (issue of whether dis trict court applied the appropriate redemption period in a mortgage foreclosure action was moot as appellant’s did not obtain a stay pending appeal and a third party redeemed the property within the redemption period held applicable by the district court); Jim Walters Homes, Inc. v. Switzer (In re Switzer), 70 F.3d 123, 1995 WL 675509, at *1 (10th Cir.1995) (table) (creditor’s appeal from order denying attorney’s fees was dismissed as moot because after filing its notice of appeal, the property securing the creditor’s lien was surrendered to it and sold at foreclosure sale). In the absence of binding precedent, we find that rule should apply. Because of the Debtor’s failure to obtain a stay pending appeal, the Appellee was entitled to treat the Relief Order as a final order and take action in reliance upon that Order. This Court is powerless to rescind the foreclosure sale on appeal, and reinstatement of the" }, { "docid": "22247378", "title": "", "text": "appellant has failed to obtain a stay from an order that permits a sale of the debtor’s assets[...., and] dictates that the appellant’s failure to obtain a stay moots the appeal.” Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1171 (9th Cir.1988); see 255 Park Plaza Assocs. Ltd. Partnership v. Connecticut Gen. Life Ins. Co. (In re 255 Park Plaza Assocs. Ltd. Partnership), 100 F.3d 1214, 1216 (6th Cir.1996); In re CGI Indus., Inc., 27 F.3d 296, 299-300 (7th Cir.1994). This rule originated as “a judicial doctrine which developed from the general rule that the occurrence of events which prevent an appellate court from granting effective relief renders an appeal moot, and the particular need for finality in orders regarding stays in bankruptcy.” Algeran v. Advance Ross Corp., 759 F.2d 1421, 1423-24 (9th Cir.1985); see In re 255 Park Plaza Assocs. Ltd. Partnership, 100 F.3d at 1216; Sullivan Cent. Plaza, I, Ltd. v. BancBoston Real Estate Capital Corp. (In re Sullivan Cent. Plaza, I, Ltd.), 914 F.2d 731, 734 (5th Cir.1990). The original codification of the judicial rule, in what was former Bankruptcy Rule 805, was subsequently fragmented, and its application limited, when Congress revised the Bankruptcy Code and Rules. This revision resulted in the enactment of Bankruptcy Rule 8005 and the concomitant incorporation of Bankruptcy Rule 805’s mootness provision into the Bankruptcy Code, 11 U.S.C. § 363(m). Algeran, 759 F.2d at 1423-24; Plainer v. AT & T, 172 B.R. 337, 340-41 (W.D.Okla.1994); see also In re 255 Park Plaza Assocs. Ltd. Partnership, 100 F.3d at 1217 (codification of mootness rule in Section 363(m)). Section 363(m) is limited in application to trustee sales of debtor property. 11 U.S.C. § 363(m); see In re Onouli-Kona Land Co., 846 F.2d at 1172; In re 255 Park Plaza Assocs. Ltd. Partnership, 100 F.3d at 1217; Miami Ctr. Limited Partnership v. Bank of New York, 838 F.2d 1547, 1553 (11th Cir.1988). However, the judicial mootness doctrine survives in situations other than those provided for by Section 363(m). Miami Ctr. Ltd. Partnership, 838 F.2d at 1553; Pittsburgh Food" }, { "docid": "15127781", "title": "", "text": "court, who must then review the bankruptcy court’s proposals de novo. 28 U.S.C. § 157(c)(1). However, when all parties consent to the bankruptcy court’s jurisdiction in a related non-core proceeding, the district court reviews the bankruptcy court’s findings of fact for clear error. See id. § 157(c)(2); Daniels-Head & Assocs. v. William M. Mercer, Inc. (In re Daniels-Head & Assocs.), 819 F.2d 914, 918 (9th Cir.1987); DuVoisin v. Foster (In re Southern Indus. Banking Corp.), 809 F.2d 329, 331 (6th Cir.1987). Here, Mann chose to file this adversary proceeding in the bankruptcy, court, and he never objected to the court’s jurisdiction prior to the time it rendered judgment against him. Through this conduct, he consented to the court’s jurisdiction. See Daniels-Head, 819 F.2d at 918-19; DuVoisin, 809 F.2d at 331; see generally, White v. McGinnis, 903 F.2d 699 (9th Cir.1990) (en banc). The district court therefore properly reviewed the bankruptcy court’s factual findings for clear error, as will we. B. Under 11 U.S.C. § 363(m), an appeal of a bankruptcy court’s ruling on a foreclosure action generally cannot affect the rights of a good faith purchaser of the foreclosed property, unless the debtor stays the foreclosure sale pending an appeal. See Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1171-73 (9th Cir.1988); Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1423-24 (9th Cir.1985). Accordingly, the debtor’s failure to obtain a stay normally renders the appeal moot. Algeran, 759 F.2d at 1423. This is true even when the purchaser knows of the pendency of the appeal or, as in this case, is a party to the appeal. See id. at 1424. There are, however, two situations in which failure to obtain a stay will not render an appeal moot: where real property is sold to a creditor subject to the right of redemption, see Phoenix Bond & Indem. Co. v. Shamblin (In re Shamblin), 890 F.2d 123, 125 n. 1 (9th Cir.1989); Onouli-Kona Land, 846 F.2d at 1172-73; and where state law would otherwise permit the transaction to be set aside. See Rosner," }, { "docid": "22247377", "title": "", "text": "point merely indicates that: (1) Robert entered into a contract for sale of the property, contingent upon court approval, with Mrs. Doris Spann in March 1997; (2) Robert moved to permit this sale; (3) a notice of the motion to sell issued (although Grace contends she did not receive such notice); (4) the court granted Robert’s motion; (5) Grace moved the court to reconsider its sale decree; and (6) the court denied Grace’s motion. At oral argument, Robert informed the court that as of that date (October 9, 1997), the sale had not occurred and that he was still willing to give the property to Grace. Robert’s mootness argument is based largely upon Rule 8005 of the Federal Rules of Bankruptcy Procedure. Rule 8005 originates from, and supports, bankruptcy’s finality rule, which consists of both statutory and judicially-created counterparts. A full discussion of the finality rule is warranted here, for it is under this rule, along -with Bankruptcy Rule 8005, that Grace’s appeal may indeed be moot. The finality rule in bankruptcy “applies when an appellant has failed to obtain a stay from an order that permits a sale of the debtor’s assets[...., and] dictates that the appellant’s failure to obtain a stay moots the appeal.” Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1171 (9th Cir.1988); see 255 Park Plaza Assocs. Ltd. Partnership v. Connecticut Gen. Life Ins. Co. (In re 255 Park Plaza Assocs. Ltd. Partnership), 100 F.3d 1214, 1216 (6th Cir.1996); In re CGI Indus., Inc., 27 F.3d 296, 299-300 (7th Cir.1994). This rule originated as “a judicial doctrine which developed from the general rule that the occurrence of events which prevent an appellate court from granting effective relief renders an appeal moot, and the particular need for finality in orders regarding stays in bankruptcy.” Algeran v. Advance Ross Corp., 759 F.2d 1421, 1423-24 (9th Cir.1985); see In re 255 Park Plaza Assocs. Ltd. Partnership, 100 F.3d at 1216; Sullivan Cent. Plaza, I, Ltd. v. BancBoston Real Estate Capital Corp. (In re Sullivan Cent. Plaza, I, Ltd.), 914 F.2d 731," }, { "docid": "5166364", "title": "", "text": "which is forthcoming in this opinion), one noteworthy item is that the mootness rule has achieved partial codification from its judicial creation which does not apply to the appeal at bar. The mootness rule first appeared in former Bankruptcy Rule 805, when a sentence was added to the existing Rule mooting an appeal when a debtor failed to obtain a Stay Pending Appeal and the creditor sold to a good faith purchaser. Rule 805, however, did not survive the 1983 changes to the Bankruptcy Rules. Currently, the mootness rule is partially codified at 11 U.S.C. § 363(m), a successor in some respects to Rule 805, but that provision applies only to sales by bankruptcy trustees. It does not apply to other foreclosure sales in bankruptcy proceedings, such as may occur when the bankruptcy court lifts the 11 U.S.C. § 362 Automatic Stay, allowing the creditor to foreclose its lien. See In re Onouli-Kona Land Co., 846 F.2d at 1172; In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d 1294, 1295 n. 2 (11th Cir.1984). Notwithstanding these partial codifications, therefore, the judicially-created mootness rule is not limited to sales by trustees, but has broader application. See Algeran, 759 F.2d at 1424. The mootness rule at issue here is non-statutory. B. The Reach of the Non-Statutory Mootness Rule Having so stated, this court must now 'probe the parameters of the non-statutory mootness rule. The Ninth Circuit has created a narrow exception to the mootness rule for cases in which real property is sold to a creditor who is a party to the appeal. E.g., In re Sun Valley Ranches, 823 F.2d at 1375; In re Springpark Assoc., Ltd. 623 F.2d 1377, 1379 (9th Cir.1980). In such a case, an appeal is not moot because a court could fashion Some sort of relief, since the creditor-purchaser is present at the appeal. Id. The Ninth Circuit, in In re Sun Valley Ranches, Inc., added that the exception is especially appropriate “where the foreclosure sale is subject to statutory rights of redemption.” 823 F.2d at 1375. The following year, in 1988, the Ninth Circuit" }, { "docid": "3748771", "title": "", "text": "full amount of its allowed claim at any sale of the collateral. The debtor filed a timely notice of appeal. DISCUSSION Mootness Initially, the appellee argues that this appeal is moot because the property has been sold in a foreclosure sale and the debtor failed to obtain a stay pending appeal. Although the appellee was the creditor as well as the purchasing party at the foreclosure sale, the Ninth Circuit has recently stated that under such circumstances there is no exception to “bankruptcy’s mootness rule” unless 1 — the appellant has obtained a stay pending appeal, or 2 — the foreclosure sale is subject to statutory rights of redemption. In re Onouli-Kona Land Co., No. 87-1575, slip op. at 4428-29 (9th Cir. April 14, 1988). The appellee argues that under Texas law, the debtor has no redemption rights and cites as authority for this argument Thornton v. Goodman, 216 S.W. 147, 148 (Tex.1919). The debtor, on the other hand, fails to address the issue of redemption rights under Texas law. Thus, it appears that the instant case is moot under the doctrine set forth in In re Onouli-Kona Land Co., 846 F.2d 1170, 1172-73 (9th Cir.1988). However, assuming arguendo that there is a right of redemption under Texas law, this Panel will address the merits of this appeal. The Plan of Reorganization I. Joint Venture vs. Sale The essence of this appeal is whether the proposed plan of reorganization was confirmable. Initially the bankruptcy court determined that the proposed plan should not be confirmed because it was merely a “joint venture” between the debt- or and Mr. Sandoval. The debtor argues that it had entered into an “Agreement of Purchase and Sale” with Mr. Sandoval which specifically set forth the terms of the contract as a “purchase and sale’’ of the subject property. Despite the debtor’s characterization of the transaction, however, the very terms of the agreement support the bankruptcy court’s ruling. Besides providing for the “purchase” of the property subject to the appellee’s allowed secured claim, the agreement between Sandoval and the debtor provided that the debtor would also" }, { "docid": "1869789", "title": "", "text": "of the bankruptcy proceedings and Appellee subsequently received her share of the homestead exemption. Bankruptcy Rule 8005 authorizes a party to file a motion to stay a bankruptcy court order pending appeal. Fed.R.Bankr.P. 8005. Unless an order approving the sale of property is stayed pending appeal, the sale of such property to a good faith purchaser shall not be affected by the reversal or modification of the order on appeal. 11 U.S.C. § 363(m). Appellee has cited several cases wherein courts dismissed bankruptcy appeals as moot after the appellants failed to obtain stays of the bankruptcy proceedings. Those cases, however, involved situations where during the pendency of the appeal, the trustee sold property from the bankruptcy estate to third-party good faith purchasers. See, e.g., In re Onouli-Kona Land Co., 846 F.2d 1170 (9th Cir.1988); In re Royal Properties, Inc., 621 F.2d 984 (9th Cir.1980). The courts were concerned that modifying the bankruptcy court’s orders would have no practical effect because the purchasers were not parties to the judicial proceedings and could not be compelled to return the property. In re Onouli-Kona Land, 846 F.2d at 1173; In re Royal Properties, 621 F.2d at 987. The present ease, however, involves the trustee releasing funds to the Debtor/Appel-lee. Appellee has cited no eases supporting the proposition that this court or the bankruptcy court would be without jurisdiction to compel her to return funds to the Trustee. As such, she has not supported her contention that the issue of the validity of the homestead exemption is moot. Moreover, because Appellee’s remaining argument— that the appeal of the dismissal of the Garcia’s Adversary Complaint is also moot — is based solely on their contention that the issue of the validity of the homestead exemption is moot, that argument must necessarily fail. III. THE BANKRUPTCY APPEAL Having determined that it is without jurisdiction to consider the first issue raised in the Garcias’ Notice of Appeal, the court will turn to the remaining two. A. The Summary Judgment Ruling The bankruptcy court granted in part Ap-pellee’s motion for summary judgment on the Adversary Complaint and dismissed" }, { "docid": "12242983", "title": "", "text": "We review de novo the district court’s determination that plaintiffs appeal to it was moot. See Arnold & Baker Farms v. United States (In re Arnold & Baker), 85 F.3d 1415, 1419 (9th Cir.1996) (“Mootness is a jurisdictional issue which we review de novo.”), cert. denied, — U.S. -, 117 S.Ct. 681, 136 L.Ed.2d 607 (1997). FAILURE TO OBTAIN A STAY Plaintiff first argues that the district court erred because plaintiffs request for a stay prevented its appeal from becoming moot. We are not persuaded. Failure actually to stay a foreclosure sale generally renders an appeal regarding that sale moot. See Mann v. Alexander Dawson Inc. (In re Mann), 907 F.2d 923, 926 (9th Cir.1990) (“[T]he debtor’s failure to obtain a stay normally renders the appeal moot.”); Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1171 (9th Cir.1988) (“Bankruptcy’s mootness rule applies when an appellant has failed to' obtain a stay from an order that permits a sale of a debtor’s assets.”). In the present context, merely asking for a stay is not enough. This ease involves “real” or constitutional (Article III) mootness, a concept that applies when “an event occurs while a case is pending appeal that makes it impossible for the court to grant ‘any effectual relief.’” Church of Scientology v. United S 313 (1992) (citation omitted). The sale of a debt- or’s property to a non-party is such an event if the debtor seeks only a return of its property. See Fultz v. Rose, 833 F.2d 1380, 1380 (9th Cir.1987) (Because the purchasers “are not parties to this action, we are no longer able to grant any effective relief from that order or to reach the merits of this appeal.”) (private sale in compliance with a court order); Holloway v. United States, 789 F.2d 1372, 1374 (9th Cir.1986) (“Because the property has been sold and the purchaser of the property was not made a party to this proceeding and because we cannot grant effective relief in his or her absence, this appeal is dismissed.”) (IRS sale). Because constitutional mootness focuses" }, { "docid": "13790593", "title": "", "text": "review decisions of the BAP de novo. See Fulkrod v. Savage (In re Fulkrod), 973 F.2d 801, 802 (9th Cir.1992). The bankruptcy court’s findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. See id. II. MOOTNESS Mootness is a jurisdictional issue reviewed de novo. See Baker & Drake, Inc. v. Public Serv. Comm’n (In re Baker & Drake, Inc.), 35 F.3d 1348, 1351 (9th Cir.1994). A. Order of Sale Filtercorp contends that Paulman’s challenge of the bankruptcy court’s order of sale of assets is moot. We agree. When a sale of assets is made to a good faith purchaser, it may not be modified or set aside unless the sale was stayed pending appeal. See 11 U.S.C. § 363(m) (1994); see also Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1172 (9th Cir.1988) (“Finality in bankruptcy has become the dominant rationale for our decisions; the trend is towards an absolute rule that requires appellants to obtain a stay before appealing a sale of assets.”). Be cause Paulman did not obtain a stay, he cannot challenge the order of sale. Nevertheless, Paulman argues the absolute mootness rule should not apply because (1) this court can fashion effective relief, (2) Gateway Lenders was not a good faith purchaser, and (3) the sale order is void because he was denied due process. These claims are without merit. First, whether we can fashion effective relief is immaterial. “[F]or [sale of assets] cases in which a court is able to fashion relief, the exception has operated in only one situation: “where real property is sold to a creditor who is a party to the appeal.’ ” Onouli-Kona, 846 F.2d at 1172 (quoting Sun Valley Ranches, Inc. v. Equitable Life Assurance Soc’y of the United States (In re Sun Valley Ranches, Inc.), 823 F.2d 1373, 1375 (9th Cir.1987)). Because the Filtercorp assets sold were business assets, not real property, this sale does not fall within the exception. Furthermore, even if “effective relief’ were a valid exception to the absolute mootness rule, it" }, { "docid": "13912730", "title": "", "text": "was entered on January 30 and escrow closed on February 2, the Debtor maintains that the sale is invalid because it occurred in violation of the automatic 10-day stay. We have not previously considered the application of Rule 62(a) to bankruptcy sales. In In re Combined Metals Reduction Co., 557 F.2d 179 (9th Cir.1977), we dismissed as moot a minor creditor’s appeals of various sales and leases of estate property by the trustee pursuant to bankruptcy court orders. One of the sales had occurred within 10 days of entry of an order authorizing sale. The appellant argued that this sale violated the 10-day automatic stay of Rule 62(a). We did not reach the issue, however, and instead held that we were powerless to void the sale because the purchaser had not been made a party to the appeal and that therefore the appeal was moot: Given the trial court’s ruling [denying the appellant’s application for a stay], the transfer of title and the failure to join the transferees as parties, it would appear that this court cannot at this time restore the status quo or grant any relief even if the district court did err in not applying Fed.R.Civ.P. 62(a). We therefore will not rule on the issue of whether the automatic stay provision of the sale is applicable to Chapter X proceedings; any such decision on our part would be in effect an advisory opinion. Id. at 192. Since Combined Metals was decided, we consistently have affirmed the importance of finality in bankruptcy sales. See In re Onouli-Kona Land Co., 846 F.2d 1170, 1172 (9th Cir.1988) (“Finality in bankruptcy has become the dominant rationale for our decisions; the trend is towards an absolute rule that requires appellants to obtain a stay before appealing a sale of assets.”). We have applied the mootness rule whether or not the purchaser is a party to the appeal or the purchaser has taken irreversible steps following the sale. Id. Indeed, we have recognized only two exceptions to the section 363(m) mootness rule: (1) where real property is sold subject to a statutory right" }, { "docid": "5166365", "title": "", "text": "Notwithstanding these partial codifications, therefore, the judicially-created mootness rule is not limited to sales by trustees, but has broader application. See Algeran, 759 F.2d at 1424. The mootness rule at issue here is non-statutory. B. The Reach of the Non-Statutory Mootness Rule Having so stated, this court must now 'probe the parameters of the non-statutory mootness rule. The Ninth Circuit has created a narrow exception to the mootness rule for cases in which real property is sold to a creditor who is a party to the appeal. E.g., In re Sun Valley Ranches, 823 F.2d at 1375; In re Springpark Assoc., Ltd. 623 F.2d 1377, 1379 (9th Cir.1980). In such a case, an appeal is not moot because a court could fashion Some sort of relief, since the creditor-purchaser is present at the appeal. Id. The Ninth Circuit, in In re Sun Valley Ranches, Inc., added that the exception is especially appropriate “where the foreclosure sale is subject to statutory rights of redemption.” 823 F.2d at 1375. The following year, in 1988, the Ninth Circuit went further by making the existence of a statutory right of redemption a flat requirement, in In re Onouli-Kona Land Co., stating that finality in bankruptcy had become the “dominate rationale” in its decisions. 846 F.2d at 1172-73. Thus, the Ninth Circuit’s very narrow exception requires that real property be bought by a creditor who is a party to the appeal and that statutory rights of redemption exist under controlling state law. Id. In contrast, the Eleventh Circuit has flatly refused any exception to the mootness rule, even where a creditor who purchases property at foreclosure is a party to the appeal. Markstein, 763 F.2d at 1327; In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d at 1296. Thus, the Ninth and Eleventh Circuits disagree on whether there should exist any exception to the mootness rule. Indeed, the Ninth Circuit has so stated: “We decline to follow the Eleventh Circuit’s contrary position.” In re Sun Valley Ranches, Inc., 823 F.2d at 1375. This court, of course, seeks Fifth Circuit authority. Appellant, in its Motion" } ]

[ { "docid": "22560059", "title": "", "text": "also maintains. But when Morgan went to the files to retrieve the actual warrant to fax to Pope, Morgan was unable to find it. She called a court clerk and learned that the warrant had been recalled five months earlier. Normally when a warrant is recalled the court clerk’s office or a judge’s chambers calls Morgan, who enters the information in the sheriff’s computer database and disposes of the physical copy. For whatever reason, the information about the recall of the warrant for Herring did not appear in the database. Morgan immediately called Pope to alert her to the mixup, and Pope contacted Anderson over a secure radio. This all unfolded in 10 to 15 minutes, but Herring had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff’s office. Id., at 26, 35-42, 54-55. Herring was indicted in the District Court for the Middle District of Alabama for illegally possessing the gun and drugs, violations of 18 U. S. C. § 922(g)(1) and 21 U. S. C. § 844(a). He moved to suppress the evidence on the ground that his initial arrest had been illegal because the warrant had been rescinded. The Magistrate Judge recommended denying the motion because the arresting officers had acted in a good-faith belief that the warrant was still outstanding. Thus, even if there were a Fourth Amendment violation, there was “no reason to believe that application of the exclusionary rule here would deter the occurrence of any future mistakes.” App. 70. The District Court adopted the Magistrate Judge’s recommendation, 451 F. Supp. 2d 1290 (2005), and the Court of Appeals for the Eleventh Circuit affirmed, 492 F. 3d 1212 (2007). The Eleventh Circuit found that the arresting officers in Coffee County “were entirely innocent of any wrongdoing or carelessness.” Id., at 1218. The court assumed that whoever failed to update the Dale County sheriff’s records was also a law enforcement official, but noted that “the conduct in. question [wa]s a negligent failure to act, not a deliberate or tactical choice to act.” Ibid. Because the error" } ]

[ { "docid": "22758900", "title": "", "text": "possess cocaine, and placed them under arrest. From this couple, the officers learned that they had purchased cocaine from Segura. Given that Segura was to call the couple at approximately 10:00 p.m. to learn if they had sold the cocaine, and that because of the lateness of the hour a search warrant could not be obtained, the officers decided to “secure” Segura’s apartment to prevent destruction of the evidence. The officers knocked and entered without the consent of the woman who opened the door. They conducted a limited security check while others went to obtain a search warrant. After nineteen hours, the warrant was issued and the search performed. In concluding that probable cause existed, although not ruling on the lower courts’ conclusion that the entry and initial search were not justified by exigent circumstances, the Supreme Court held that the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as ‘fruit’ of the illegal entry because the warrant and the information on which it was based were unrelated to the entry and therefore constituted an independent source for the evidence.... 468 U.S. at 799, 104 S.Ct. 3380. The Supreme Court did not answer directly the question presented by this case — whether probable cause exists if it was not clearly established that drugs were in the apartment. But it did conclude that probable cause existed under the facts of that ease, and noted that “[t]he illegality of the initial entry ... has no bearing on ... whether the evidence first discovered during the search of the apartment pursuant to a valid warrant issued the day after the entry should have been suppressed as ‘fruit’ of the illegal entry.” Id. at 798, 104 S.Ct. 3380. But see United States v. Dice, 200 F.3d 978 (6th Cir.2000) (holding that violation of knock-and-announce rule during execution of valid search warrant warranted suppression of evidence seized in search following violation). Our case law follows the" }, { "docid": "21691524", "title": "", "text": "the fourth amendment context lend strong support to our conclusion: United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975) and United States v. Leon, — U.S. ---, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Peltier, the Court considered whether it should apply the holding in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) — that a warrantless border patrol search approximately twenty-five miles from the border violated the fourth amendment — to exclude evidence from a search conducted under similar circumstances before Almeida-Sanchez was decided. The Court noted that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the ‘imperative of judicial integrity’ is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner. Peltier, 422 U.S. at 537, 95 S.Ct. at 2317. The court also stated that, in light of the good faith reliance of the officers on the state of the law as they found it, retroactive application of Almeida-Sanchez would have no deterrent effect. Id. at 538-39, 95 S.Ct. at 2318. Accordingly, it reversed the court of appeals’ determination that the evidence seized was to be excluded. In Leon, police officers obtained a “facially valid search warrant,” 104 S.Ct. at 3410, from a state superior court prior to conducting a search of defendant’s residence for contraband. The defendant was indicted by a federal grand jury and charged with conspiracy to possess and distribute cocaine, and a number of substantive drug counts. The United States District Court for the Central District of California concluded that, although the police officers had acted in good faith pursuant to what they believed to be a valid warrant, the search was invalid because the warrant was not supported by probable cause. The court thus suppressed evidence gathered during the search. The Court of Appeals for the Ninth Circuit affirmed. The Supreme Court held, however, that the marginal or nonexistent" }, { "docid": "14579980", "title": "", "text": "363 F.3d 1061, 1068 (10th Cir.2004). Instead, they chose to detain Mr. Cantu for a period of two-and-one-half hours while they obtained a search warrant. Mr. Cantu complains that this detention was unreasonable. We believe the Supreme Court’s decision in Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), is dispositive here. In McArthur, police officers were informed by the wife of the defendant that he was in possession of drugs. Id. at 329, 121 S.Ct. 946. After the defendant refused consent to search his home, police officers detained him on the front porch for two hours while they obtained a search warrant. Id. Upon execution of the warrant, police officers discovered a small amount of marijuana and drug paraphernalia. Id. The defendant challenged his detention as unreasonable under the Fourth Amendment. A nearly unanimous Supreme Court rejected this argument, finding the detention reasonable for the following reasons: 1) police had probable cause to believe contraband was in the home; 2) police had good reason to fear that the defendant might destroy the evidence; 3) officers balanced law enforcement needs with the demands of personal privacy by neither searching the trailer nor arresting the defendant while obtaining the warrant; 4) the restraint was only imposed for a limited period of time, i.e., two hours. Id. at 331-32, 121 S.Ct. 946. Reasons similar to those relied on by the Supreme Court attend this case. As we have previously determined, the police officers had probable cause to believe that Mr. Cantu’s vehicle contained illegal narcotics. Moreover, given the inherent mobility of automobiles, the officers had every reason to believe that Mr. Cantu might flee with the drugs and destroy or conceal them were he not detained. We also believe the officers properly balanced law enforcement and private interests in this case. In contrast to an individual’s expectation of privacy in his own home, a diminished expectation inheres with automobiles. See Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); United States v. Arzaga, 9 F.3d 91, 94 (10th Cir.1993). By seeking a warrant," }, { "docid": "15976647", "title": "", "text": "the Silvestri dwellings and the detention of residents was “illegal and inexcusable,” and that it could not be justified by exigent circumstances. It further held that the search warrant affidavit did not contain any facts derived from the illegal entry and, therefore, the evidence seized pursuant to the warrant was not tainted. This case is controlled by Segura v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). The question in Segura was whether, because of an earlier illegal entry, the Fourth Amendment requires suppression of evidence seized later from a private residence pursuant to a valid search warrant which was issued on information obtained by the police before the entry into the residence. Id. at -, 104 S.Ct. at 3380 (footnote omitted). The Court specifically held that where officers, having probable cause, enter premises, and with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment’s proscription against unreasonable seizures. Id. at -, 104 S.Ct. at 3383 (footnote omitted). The Court further held that the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as “fruit” of the illegal entry because the warrant and the information on which it was based were unrelated to the entry and therefore constituted an independent source for the evidence under Silverthorne Lumber Co. v. United States, 251 U.S. 385 [40 S.Ct. 182, 64 L.Ed. 319] (1920). Id. Like Segura, here the police engaged in a fourth amendment seizure after illegally entering the two Silvestri residences in order to “secure” the homes from within. The entry was illegal under the fourth amendment because it occurred in the absence of consent, exigent circumstances, or a valid warrant." }, { "docid": "20365306", "title": "", "text": "the warrant were sufficient without any of the information acquired during the prior entry. Templeman I, 938 F.2d at 125. Beck, Templeman and progeny are consistent with the Supreme Court’s ruling in Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). The Segura Court focused on the precise issue of whether “drugs and the other items not observed during the initial entry and first discovered by the agents the day after the entry, under an admittedly valid search warrant, should have been suppressed.” Segura, at 804, 104 S.Ct. at 3385. The Court cited the principle based on Silverthome, supra, that the exclusionary rule does not apply where the government learned of the evidence from an independent source. Id. at 805, 104 S.Ct. at 3385-86. In Segura, as in the instant case, there was no challenge to the validity of the warrant itself, but appellants argued that because the contents of the residence were then under the control of the agents, no one had been permitted to remove the incriminating evidence. The Supreme Court rejected the reasoning that evidence should be suppressed simply because it could have been destroyed or removed had the agents not made the illegal entry and “occupation” of the apartment. Id. at 803, 104 S.Ct. at 3384-85. The Court approvingly cited the Second Circuit’s ruling in United States v. Agapito, 620 F.2d 324 (2nd Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980), in which law enforcement officers arrested suspected occupants of a hotel room that had been under surveillance; the officers entered the room without a warrant and remained there almost continuously for roughly 24 hours until a search warrant was issued. During that time the agents seized but did not open a suitcase found in the room, and in a search pursuant to a warrant, the agents found cocaine in the suitcase. The Supreme Court approved the Agapito holding that although the initial entry was illegal, the cocaine need not be suppressed because it was discovered in the search under a valid warrant. Segura, 468 U.S." }, { "docid": "8992146", "title": "", "text": "States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.2006) (“Leon’s good-faith exception applies only narrowly, and ordinarily only where an officer relies, in an objectively reasonable manner, on a mistake made by someone other than the officer.”). (ii) Herring v. United States. Recently, the Supreme Court decided a case that may have changed the standard for the good-faith exception to the warrant requirement. In Herring v. United States, officers arrested Herring pursuant to an arrest warrant listed in the Dale County Alabama warrant database. See 129 S.Ct. at 698. In the search incident to that arrest, officers found drugs and a gun on Herring’s person. See id. Herring was then indicted on federal gun and drug-possession charges. See 129 S.Ct. at 699. It turned out, however, that the warrant under which the officers arrested Herring had been recalled, but the database had not been updated to reflect that recall. See 129 S.Ct. at 698. Asserting that the evidence found during the search was fruit of an unlawful arrest, Herring sought to suppress it. See 129 S.Ct. at 699. The district court denied Herring’s motion to suppress, and the United States Court of Appeals for the Eleventh Circuit affirmed. See 129 S.Ct. at 699. The Supreme Court In United States v. Herring also affirmed the district court’s denial of Herring’s motion to suppress, based primarily on the good-faith exception to the exclusionary rule. The Supreme Court agreed with the Eleventh Circuit that, although the failure of the police to update the warrant database to reflect the fact that Herring’s warrant was withdrawn was negligent, it was not reckless or deliberate. See Herring v. United States, 129 S.Ct. at 700. The Supreme Court reiterated its holding in United States v. Leon: “When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted ‘in objectively reasonable reliance’ on the subsequently invalidated search warrant.” Herring v. United States, 129 S.Ct. at 701 (citing United States v. Leon, 468 U.S. at 922, 104 S.Ct. 3405). Tracing the history of cases applying and" }, { "docid": "23556494", "title": "", "text": "Leon, 468 U.S. at 911, 104 S.Ct. 3405). The Herring Court explained that the rule should not be applied where excluding the evidence would have little deterrent effect on future constitutional violations by law enforcement officers, and the cost to society of such a rule is high. Id. at 147-148, 129 S.Ct. 695 (concluding that “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way’ ” and the exclusionary rule should not be applied). In Herring, the mistake made by police was that a police department in Dale County, Alabama told the neighboring Coffee County police that the defendant had an outstanding arrest warrant in Dale County. Id. at 137-38, 129 S.Ct. 695. In fact, the Dale County arrest warrant had been recalled five months earlier, but had never been deleted from the electronic database. Id. at 138, 129 S.Ct. 695. After being given the incorrect information that the warrant was outstanding, a Coffee County police officer detained Herring, and found drugs and a gun on his person. Id. Herring sought to exclude the evidence seized from his person. Id. at 137, 129 S.Ct. 695. The majority distinguished the negligent conduct involved in Herring from earlier eases where the good faith exception did not apply, calling the error before it the “result of isolated negligence attenuated from the arrest.” Id. at 137, 129 S.Ct. 695. More recently, the Supreme Court followed the Herring analysis in Davis, 131 S.Ct. 2419, where the Court considered “whether to apply [the exclusionary rule] when the police conduct a search in compliance with binding precedent that is later overruled.” Id. at 2423. The Court ruled that the exclusionary rule should not be applied in those circumstances, “[b]ecause suppression would do nothing to deter police misconduct ... and because it would come at a high cost to both the truth and the public safety.” Id. In so ruling, the Court again expounded on the balancing test that courts must apply after finding a Fourth Amendment" }, { "docid": "6447678", "title": "", "text": "to carry its burden that the TSA properly uncovered photographs that would support probable cause to arrest Defendant. C. Whether Suppression Is Appropriate The court must now determine whether, based on the facts and conclusions described above, suppression of the evidence is warranted. The government argues against suppression on the basis that (1) pursuant to Herring v. United States, — U.S.-, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), there was no flagrant violation of Defendant’s rights; and (2) Defendant’s voluntary consent to a search of his luggage was not tainted by any illegal search. The court addresses each of these arguments in turn. 1. Herring v. United States Given that Herring was decided in January 2009, the reach of its holding has yet to be fully tested. In Herring, the defendant was stopped by police officers who were informed by a dispatcher that a database revealed an outstanding warrant for his arrest. The police officers uncovered methamphetamine and a firearm, but were later notified that the warrant had actually been recalled and remained in the database due to a system error. Herring found that suppression under these facts was not appropriate because the conduct at issue was not “so objectively culpable as to require exclusion.” Herring, 129 S.Ct. at 703. In so holding, Herring goes beyond the facts presented and expounds on the purpose and application of the exclusionary rule. Specifically, Herring affirms the general principle that “suppression is not an automatic consequence of a Fourth Amendment violation.” Id. at 698. “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 702. The exclusionary rule applies “to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” as opposed to “nonrecurring and attenuated negligence.” Id. Herring further outlines that in determining the culpability of the conduct involved, the court “must consider the actions of all the police officers involved.” Id. at 699 (quoting United States v. Leon, 468 U.S. 897, 923" }, { "docid": "8783327", "title": "", "text": "Alabama police officer based on information received from the warrant clerk in nearby Dale County that there was an outstanding warrant for his arrest for failure to appear on a felony charge. Id. at 698. Within ten or fifteen minutes however, the Dale County warrant clerk realized that there had been an error in the sheriffs department’s record keeping, and that Herring’s warrant had been recalled five months earlier. By that time, however, Herring had already been arrested by the Coffee County officers and found with a gun and drugs that were the basis of his subsequent motion to suppress. Id. The Court stressed that “suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Id. at 698. In Leon, the Court stated clearly that “an assessment of the flagraney of the police misconduct constitutes an important step in the calculus” of applying the exclusionary rule. Leon, 468 U.S. at 911, 104 S.Ct. 3405. It further elaborated in Krull that evidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Krull, 480 U.S. at 348-49, 107 S.Ct. 1160. Mindful of Leon’s admonition that when applying the good faith rule, courts must consider the actions of all the police officers involved, the Court found that the Coffee County police officers did nothing wrong, and the error by the Dale County sheriffs department was negligent, but not reckless or deliberate. Herring, 129 S.Ct. at 700. In addition, any deterrent benefits achieved by exclusion of evidence must outweigh the costs to the justice system. “The principal cost of applying the rule, is, of course, letting guilty and possibly dangerous defendants go free — something that ‘offends basic concepts of the criminal justice system.’ ” Id. at 701 (quoting Leon, 468 U.S. at 908, 104 S.Ct. 3405). “[T]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a high" }, { "docid": "20365305", "title": "", "text": "this Court remanded for a determination of whether the affidavit had presented sufficient evidence not seized in the initial illegal entry to support issuance of the warrant. Id. at 125. After remand, the District Court found that the government did not discover the evidence as a result of the initial illegal search, and therefore admitted the evidence. United States v. Templeman, 965 F.2d 617, 618 (8th Cir.1992) (Templeman II), cert. denied, — U.S. -, 113 S.Ct. 482, 121 L.Ed.2d 387 (1992). Although differing somewhat in its fact pattern from the instant case, (Templeman involved drugs that had already been intercepted by postal inspectors pursuant to a valid search warrant prior to the warrantless entry at Templeman’s home) the two Templeman cases clearly re-affirmed the principle in Beck, supra, United States v. Williams, 737 F.2d 735 (8th Cir.1984) and progeny that a search executed under a valid warrant will be upheld even though the affidavit may have contained some information obtained during a prior illegal search; in those cases this Court found that the affidavits supporting the warrant were sufficient without any of the information acquired during the prior entry. Templeman I, 938 F.2d at 125. Beck, Templeman and progeny are consistent with the Supreme Court’s ruling in Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). The Segura Court focused on the precise issue of whether “drugs and the other items not observed during the initial entry and first discovered by the agents the day after the entry, under an admittedly valid search warrant, should have been suppressed.” Segura, at 804, 104 S.Ct. at 3385. The Court cited the principle based on Silverthome, supra, that the exclusionary rule does not apply where the government learned of the evidence from an independent source. Id. at 805, 104 S.Ct. at 3385-86. In Segura, as in the instant case, there was no challenge to the validity of the warrant itself, but appellants argued that because the contents of the residence were then under the control of the agents, no one had been permitted to remove the incriminating evidence." }, { "docid": "5798830", "title": "", "text": "arrest. The district court denied the motions to suppress based on its conclusion that if all reference to the items seen in plain view by the officers after the initial entry is deleted, Detective Hurst’s affidavit “still contains sufficient untainted facts to establish probable cause for the warrant to issue.” The district court concluded further that “[t]his [untainted] information and the resulting lawful warrant constitute an independent source for the evidence found in Room 227.” In Segura v. United States, 468 U.S. 796, 799, 104 S.Ct. 3380, 3382, 82 L.Ed.2d 599 (1984), the Supreme Court held that a search was valid notwithstanding the fact that an earlier illegal entry had been made on the premises because the warrant was issued “wholly on information known to officers before the entry into the apartment....” The court concluded that the exclusionary rule was inapplicable because the government had discovered the existence of the items described in the search warrant from an independent source. Id. at 805, 104 S.Ct. at 3385. Salas contends that there was no independent source for the issuance of the search warrant. He argues that the officers “had applied for a search warrant and had been refused.” Brief of Appellant Salas, pg 8. This argument mischaracterizes the evidence. The officers did not apply to a magistrate for the issuance of a search warrant prior to the discovery of cocaine on Salas’ person. The record does show that prior to the lawful detention of Salas, a county prosecutor had advised Detective Hurst to continue his surveillance for additional information. Thereafter, the officers’ personal observations including the seizure of cocaine from Salas’ jacket corroborated the information they had received from the employees at Nendel’s Motel. Salas also asserts that Detective Hurst’s affidavit contained tainted evidence that was the fruit of the initial illegal entry. In United States v. Driver, 776 F.2d 807 (9th Cir.1985), we held that, “[t]he warrant may be upheld even where it contains tainted and untainted facts as long as the untainted portions contain a sufficient showing of probable cause to render the warrant valid.” The district court concluded" }, { "docid": "632362", "title": "", "text": "U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), even if the agents’ initial entry and security search were illegal. In Segura, law enforcement agents, having arrested the defendant Segura in the lobby of his apartment building, went to his apartment and entered it with Segura, without requesting or receiving permission. Four persons were in the apartment, among them defendant Colon who was also arrested. The agents conducted a limited security check to ensure that no one else was in the apartment who might pose a threat to their safety or destroy evidence. Segura, Colon, and the other occupants were taken to DEA headquarters. Agents then remained in the apartment for some nineteen hours until a search warrant had been issued. Segura, 104 S.Ct. at 3383-84. The Supreme Court did not review whether the initial warrantless entry and limited security search were illegal as the courts below had determined. Id. at 3385. Instead, the Court concluded first that, assuming that there was a seizure of all the contents of the petitioners’ apartment when agents secured the premises from within, that seizure did not violate the Fourth Amendment. Specifically, we hold that where officers, having probable cause, enter premises, and with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment’s proscription against unreasonable seizures. Id. at 3382-83 (footnote omitted; emphasis in original). Second, the Court held that the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as “fruit” of the illegal entry because the warrant and the information on which it was based were unrelated to the entry and therefore constituted an independent source for the evidence. Id. at 3383. The Segura decision controls" }, { "docid": "8992145", "title": "", "text": "a warrant is tainted by some unconstitutionally obtained information, we nonetheless uphold the warrant if there was probable cause absent that information. An affidavit containing erroneous or unconstitutionally obtained information invalidates a warrant if that information was critical to establishing probable cause. If, however, the affidavit contained sufficient accurate or untainted evidence, the warrant is nevertheless valid. United States v. Sims, 428 F.3d 945, 954 (10th Cir.2005). See United States v. Cusumano, 83 F.3d 1247,1250 (10th Cir.1996) (“In our review, we may disregard allegedly tainted material in the affidavit and ask whether sufficient facts remain to establish probable cause.”); United States v. Snow, 919 F.2d 1458, 1460 (10th Cir.1990) (“An affidavit containing erroneous or unconstitutionally obtained information invalidates a warrant if that information was critical to establishing probable cause. If, however, the affidavit contained sufficient accurate or untainted evidence, the warrant is nevertheless valid.”). The apparent rationale for this rule is that one officer cannot execute a warrant “in good faith” if it contains information that he or a fellow officer obtained illegally. See United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir.2006) (“Leon’s good-faith exception applies only narrowly, and ordinarily only where an officer relies, in an objectively reasonable manner, on a mistake made by someone other than the officer.”). (ii) Herring v. United States. Recently, the Supreme Court decided a case that may have changed the standard for the good-faith exception to the warrant requirement. In Herring v. United States, officers arrested Herring pursuant to an arrest warrant listed in the Dale County Alabama warrant database. See 129 S.Ct. at 698. In the search incident to that arrest, officers found drugs and a gun on Herring’s person. See id. Herring was then indicted on federal gun and drug-possession charges. See 129 S.Ct. at 699. It turned out, however, that the warrant under which the officers arrested Herring had been recalled, but the database had not been updated to reflect that recall. See 129 S.Ct. at 698. Asserting that the evidence found during the search was fruit of an unlawful arrest, Herring sought to suppress it. See 129" }, { "docid": "11422045", "title": "", "text": "device away from the outer walls of rooms and away from furniture and curtains that could catch on fire, so he aimed for the center of the room. Although his concern for fire safety was valid, Forsyth threw the flash-bang close to Defendant. Ultimately, we need not determine whether the entry was unreasonable because we agree with the district court that suppression is not appropriate in any event. The alleged Fourth Amendment violation and the discovery of the evidence lack the causal nexus that is required to invoke the exclusionary rule. The principle that the exclusionary rule applies only when discovery of evidence results from a Fourth Amendment violation is well-established. See, e.g., Hudson, 126 S.Ct. at 2164 (“[B]ut-for causality is ... a necessary ... condition for suppression.”); Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (noting that the exclusionary rule reaches “evidence obtained as a direct result of an illegal search or seizure,” or “found to be derivative of an illegality”); United States v. Pulliam, 405 F.3d 782, 791 (9th Cir.2005) (denying suppression because “the indispensable causal connection” between the unlawful act and discovery of the evidence was absent). United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998), is instructive. There, the police obtained a no-knock warrant to search a home. Approximately 45 officers gathered, announced by loudspeaker that they had a search warrant, broke one window in the garage, and pointed a gun through the opening. The Supreme Court noted that “[ejxcessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression.” Id. at 71, 118 S.Ct. 992 (emphasis added). Although the Court concluded that the police conduct in that case did not violate the Fourth Amendment, the Court noted that, had the search been unreasonable, it then would have had to determine “whether ... there was [a] sufficient causal relationship between the breaking of the window and the discovery of the" }, { "docid": "8992147", "title": "", "text": "S.Ct. at 699. The district court denied Herring’s motion to suppress, and the United States Court of Appeals for the Eleventh Circuit affirmed. See 129 S.Ct. at 699. The Supreme Court In United States v. Herring also affirmed the district court’s denial of Herring’s motion to suppress, based primarily on the good-faith exception to the exclusionary rule. The Supreme Court agreed with the Eleventh Circuit that, although the failure of the police to update the warrant database to reflect the fact that Herring’s warrant was withdrawn was negligent, it was not reckless or deliberate. See Herring v. United States, 129 S.Ct. at 700. The Supreme Court reiterated its holding in United States v. Leon: “When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted ‘in objectively reasonable reliance’ on the subsequently invalidated search warrant.” Herring v. United States, 129 S.Ct. at 701 (citing United States v. Leon, 468 U.S. at 922, 104 S.Ct. 3405). Tracing the history of cases applying and declining to apply the exclusionary rule, the Supreme Court distilled a general principle: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring v. United States, 129 S.Ct. at 702. The Supreme Court in Herring v. United States then held that, as long as the “police have [not] been shown to be reckless in maintaining [the] warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests,” exclusion of evidence is not warranted when the arrest was made in objectively reasonable reliance on a warrant that had been subsequently recalled. 129 S.Ct. at 703-04. Thus, it appears that, if the police make a negligent administrative error which results in a warrant not being withdrawn when it should have been, and evidence is obtained incident to an arrest made in reasonable reliance on that warrant, the good-faith exception to the exclusionary rule will apply. In United States" }, { "docid": "6447679", "title": "", "text": "database due to a system error. Herring found that suppression under these facts was not appropriate because the conduct at issue was not “so objectively culpable as to require exclusion.” Herring, 129 S.Ct. at 703. In so holding, Herring goes beyond the facts presented and expounds on the purpose and application of the exclusionary rule. Specifically, Herring affirms the general principle that “suppression is not an automatic consequence of a Fourth Amendment violation.” Id. at 698. “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 702. The exclusionary rule applies “to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” as opposed to “nonrecurring and attenuated negligence.” Id. Herring further outlines that in determining the culpability of the conduct involved, the court “must consider the actions of all the police officers involved.” Id. at 699 (quoting United States v. Leon, 468 U.S. 897, 923 n. 24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). This analysis is “objective, not an inquiry into the subjective awareness of arresting officers.” Id. at 703 (quotations omitted). In other words, the “ ‘good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.’” Id. (quoting Leon, 468 U.S. at 922, 104 S.Ct. 3405). The court is hesitant to simply apply a Herring analysis to all Fourth Amendment violations. Certainly, the facts presented in this action—an overbroad warrantless TSA search uncovering evidence of child pornography which is then turned over to the police—are very different than the clerical error of Herring. The court is aware, however, that Hemng may apply at least to some Fourth Amendment violations stemming from warrantless searches. See United States v. Monghur, 576 F.3d 1008, 1013-14 (9th Cir.2009) (finding that a warrantless search violated the defendant’s Fourth Amendment rights and remanding to district court to determine whether suppression is warranted). Accordingly, assuming" }, { "docid": "8783326", "title": "", "text": "there was no basis for the Court to conclude that application of the exclusionary rule in those circumstances would have any significant effect on deterring those types of errors in the future. See 514 U.S. at 15, 115 S.Ct. 1185. Finally, earlier this year in Herring v. United States, the Court resolved one of the outstanding questions regarding the good faith rule: Whether evidence should be suppressed if police personnel, as opposed to legislative or judicial actors, are responsible for the error upon which other police relied. 129 S.Ct. at 698. Herring involved a factual scenario similar to that in Evans. In both cases, an arrest and search were made pursuant to information retrieved from a database indicating that an individual had an outstanding warrant for his arrest. In both cases, this information was erroneous. The crucial difference was that in Evans, the computer records were maintained by the justice court clerk’s office, whereas in Herring, the records were maintained by the sheriffs department in a neighboring county. Herring was arrested by a Coffee County, Alabama police officer based on information received from the warrant clerk in nearby Dale County that there was an outstanding warrant for his arrest for failure to appear on a felony charge. Id. at 698. Within ten or fifteen minutes however, the Dale County warrant clerk realized that there had been an error in the sheriffs department’s record keeping, and that Herring’s warrant had been recalled five months earlier. By that time, however, Herring had already been arrested by the Coffee County officers and found with a gun and drugs that were the basis of his subsequent motion to suppress. Id. The Court stressed that “suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Id. at 698. In Leon, the Court stated clearly that “an assessment of the flagraney of the police misconduct constitutes an important step in the calculus” of applying the exclusionary rule. Leon, 468 U.S. at 911, 104 S.Ct. 3405." }, { "docid": "14097429", "title": "", "text": "1868. “When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.” Id. See also Awadallah II, — F.Supp.3d at -, 2002 WL 123478, at *25. Awadallah’s testimony before the' grand jury was undoubtedly the product of an unlawful seizure because the government lacked the statutory authority to detain him under section 3144. 1. The Government’s Argument The government argues that Awadal-lah’s grand jury testimony should not be suppressed because “[it] is not causally connected to his arrest on the material witness warrant.” Gov’t Mem. at 83. According to the government, “ ‘[our] cases make clear that evidence will not be excluded as “fruit” unless the illegality is at least the “but for” cause of the discovery of the evidence.’ ” Id. (quoting Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984)). The prosecution asserts that its conduct was not the “but for” cause of Awadallah’s testimony because “[assuming that the Government had not sought a material witness warrant, Awadallah still would have been served with a subpoena to appear before the grand jury in New York, and would have been questioned on the same subjects.” Gov’t Mem. at 83. The government misses the point. In Segura, the Court held that, where the police initially conducted an illegal search and then subsequently searched the same area pursuant to a valid warrant, the “independent source” doctrine permits the admission of evidence discovered for the first time during the second (lawful) search. 468 U.S. at 804, 104 S.Ct. 3380. In doing so, the Court explained that “the exclusionary rule reaches not only ‘primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ ” Id. (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939))(emphasis added) (citation omitted). “[I]n the classic independent source situation, information which is received through an illegal source is considered to be cleanly" }, { "docid": "20713014", "title": "", "text": "house. Suggs contends that the law enforcement officers’ initial entry into his house was unlawful and that the evidence later seized from his house therefore should have been suppressed. But even assuming for the sake of argument that the initial entry was unlawful, evidence subsequently seized pursuant to a valid search warrant is admissible when “there was an independent source for the warrant under which that evidence was seized.” Segura v. United States, 468 U.S. 796, 814, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Here, the officers had such an independent source — namely, before the law enforcement officers’ initial entry into Suggs’s house, Investigator Eames detected an odor consistent with PCP coming from the house. Suggs thus cannot use the initial entry as the hook to suppress evidence later seized pursuant to a valid and independently obtained search warrant. See id. at 813-14, 104 S.Ct. 3380; see also Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). 2 Suggs also challenges the issuing judge’s probable-cause determination and on that basis says that the evidence seized from his house should have been excluded. The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. CONST, amend. IV. When police obtain evidence by way of an unlawful search, the exclusionary rule may require exclusion of that evidence in some circumstances. As the Supreme Court has instructed, however, the exclusionary rule has limited force in cases involving a search with a search warrant. In particular, reviewing courts may not exclude evidence “when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.” United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The reason is evident: “In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.” Id. at 921, 104 S.Ct. 3405." }, { "docid": "19628585", "title": "", "text": "422 U.S., at 605, 95 S.Ct. 2254. Under our precedents, because the officer found Strieff's drugs by exploiting his own constitutional violation, the drugs should be excluded. III A The Court sees things differently. To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence. Ante, at 2062-2063. This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch. To explain its reasoning, the Court relies on Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). There, federal agents applied for a warrant to search an apartment but illegally entered the apartment to secure it before the judge issued the warrant. Id., at 800-801, 104 S.Ct. 3380. After receiving the warrant, the agents then searched the apartment for drugs. Id., at 801, 104 S.Ct. 3380. The question before us was what to do with the evidence the agents then discovered. We declined to suppress it because \"[t]he illegal entry into petitioners' apartment did not contribute in any way to discovery of the evidence seized under the warrant.\" Id., at 815, 104 S.Ct. 3380. According to the majority, Segura involves facts \"similar\" to this case and \"suggest[s]\" that a valid warrant will clean up whatever illegal conduct uncovered it. Ante, at 2062 - 2063. It is difficult to understand this interpretation. In Segura, the agents' illegal conduct in entering the apartment had nothing to do with their procurement of a search warrant. Here, the officer's illegal conduct in stopping Strieff was essential to his discovery of an arrest warrant. Segura would be similar only if the agents used information they illegally obtained from the apartment to procure a search warrant or discover an arrest warrant. Precisely because that was not the case, the Court admitted the untainted evidence. 468 U.S., at 814, 104" } ]

[ { "docid": "22082430", "title": "", "text": "shall' not exist- m any part of the United. States.” Civil Rights cases, 100 U. S. 3, 20. As to- involuntary servitude, it may exist in the United States; but it can only exist lawfully as -a punishment for crime of which the party shall have been duly convicted. Such is- the plain reading of the. Constitution. A condition of enforced service,. even for a limited period,-in the private business of another, is a-condition Of involuntary servitude. If it be said that government má-y make it-a criminal offence,-punishable by.ñne or imprisonment or- both, for any one to violate his private contract voluntarily made, or to refuse without sufficient reason to 'perform it — a proposition which cannot, I think, be sustained at this day, in this land of freedom— it would by no-means follow that government could, by force applied iii advance of due conviction of some crime, compel a freeman to render personal services in respect of the private business of another. The-placing of a person, by force, on a vessel about to sail, is putting him in a condition of involuntary servitude, if the purpose is to compel him-against his will to give his personal services in the private. business in which that vessel is engaged. The personal liberty of individuals, it has been well said, “consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due Course of law.” 1 Bl. c. 1, p. 134. . Can the decision of the court be sustained under the clausa of the Constitution granting power to Congress to regulate commerce with foreign nations and among the severa? States! That power cannot be exerted except with due regard to other provisions of the Constitution, particularly those embodying the fundamental guarantees of life, liberty and property. \"While Congress may enact regulations for the conduct of commerce with foreign nations and among the States, and may, perhaps, prescribe punishment for the violation of such regulations, it may not, in so doing, ignore other clauses of the" } ]

[ { "docid": "22559316", "title": "", "text": "being made against him while the statutory immunity forces him to supply evidence leading to an accusation and provides only a means for defense; that the statute puts a heavy burden on petitioner, if he is indicted, to prove that he had testified concerning the matter for which he was indicted; that a citizen is entitled to the very thing secured to him by the constitutional safeguards and not something which will probably answer the same purpose; that the statute subjects him to the infamy and disgrace from which he was protected by the constitutional safeguard; that the statute did not protect him from prosecution for a state crime; that even if it were so interpreted, Congress had no power to grant such protection; that the immunity granted was too narrow since it only extended to matters concerning which he was called to testify and not to all matters related to the testimony given; that to be able to claim the privilege the witness would virtually have to reveal his crime in order that the court could see that the statute failed to protect him; and finally that the statute was an attempt to exercise the power of pardon which was a power not delegated to Congress. “. . . the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” Gompers v. United States, 233 U. S. 604, 610. We do not discuss petitioner’s argument, relying on the First Amendment, that inquiry into his political membership and associations is unconstitutional. Petitioner contends that some of the questions which he was asked are objectionable because they require testimony that is protected by the implications of the First Amendment. But it is every man’s duty to give testimony before a duly constituted tribunal unless he invokes some valid legal exemption in withholding it. Although petitioner made the" }, { "docid": "22538459", "title": "", "text": "trial of contempts subjected to severe punishment represents an unacceptable construction of the Constitution, \"an unconstitutional assumption of powers by the [courts] which no lapse of time or respectable array of opinion should make us hesitate to correct.” Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U. S. 518, 533 (1928) (Holmes, J., dissenting). The rule of our prior cases has strong, though sharply challenged, historical support; but neither this circumstance nor the considera tions of necessity and efficiency normally offered in defense of the established rule, justify denying a jury trial in serious criminal contempt cases. The Constitu tion guarantees the right to jury trial in state court prosecutions for contempt just as it does for other crimes. II. Criminal contempt is, a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes: “These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.” Compers v. United States, 233 U. S. 604, 610 (1914). Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical — protection of the institutions of our government and enforcement of their mandates. Given that criminal contempt is a crime in every fundamental respect, the question is whether it is a crime to which the jury trial provisions of the Constitution apply. We hold that it is, primarily because in terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases an even more" }, { "docid": "22864990", "title": "", "text": "could only indict for statutory crimes though they might punish; for commomlaw contempts. Nothing in the ordinary meaning of the words “ of-fences against the United States ” excludes criminal con-tempts. That which violates the dignity and authority of federal courts such as an intentional effort to defeat their decrees justifying punishment violates a law of the United States (In re Neagle, 135 U. S. 1, 59, et seq.), and so must be an offense against the United States.. Moreover, this Court has held that the general statute of limitation which forbids prosecutions “ for any offense unless instituted within three years next after such offense shall have been committed,” applies to criminal contempts. Gompers v. United States, 233 U. S. 604. In that case this Court said (p. 610): “ It is urged in the first place that contempts'can not be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they aré not within the protection of the Constitution and the amendments giving a right to trial by jury &c. to persons charged with such crimes. But the provisions of the Constitution are not mathematical formulas having their essence in their, form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth. Robertson v. Baldwin, 165 U. S. 275, 281, 282. It does not follow that contempts of the class under consideration are not crimes, or rather, in the language'of the .statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such.. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in’English speech. So truly are they crimes that it seems to be proved that in the early law they were" }, { "docid": "22174466", "title": "", "text": "question,” he said, “naturally, is that of the jurisdiction of this court. The jurisdiction to punish for a contempt is not denied as a general abstract proposition, as, of course, it could not be with success. Ex parte Robinson, 19 Wall. 505, 510; Ex parte Terry, 128 U. S. 289, 302, 303.” At 572. He also emphasized that “[t]he court is not a party. There is nothing that affects the judges in their own persons. Their concern is only that the law should be obeyed and enforced, and their interest is no other than that they represent in every case.” At 574. Since Shipp was a case of original jurisdiction in this Court, testimony was then taken before a commissioner, not a jury, 214 U. S. 386, 471. After argument this Court adjudged the defendants guilty, 214 U. S. 386, and sentenced some of them to prison, 215 U. S. 580. Mr. Justice Holmes also wrote another leading case in the contempt field in 1914, Gompers v. United States, 233 U. S. 604, in which he made explicit what he left implicit in Shipp, supra: “It is urged in the first place that contempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution and the amendments giving a right to trial by jury .... It does not follow that contempts of the class under consideration are not crimes, or rather, . . . offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right.” At 610. In 1919 Chief Justice White in Ex parte Hudgings, 249 U. S. 378, restated the same principle in these words: “Existing within the limits of and sanctioned by the Constitution, the power to punish for contempt committed in the presence of the court is not controlled by the limitations of the Constitution as to modes of accusation and methods of trial generally safeguarding the rights of the citizen. . . . [The] only" }, { "docid": "23449085", "title": "", "text": "a violation of an injunction is not “ a criminal prosecution ” within the provisions of the Sixth Amendment relating to venue in a jury trial, Myers v. United States, 264 U. S. 95, 105, such a criminal contempt is “ an offense against the United States ” whose prosecution is subject to the statute of limitations applicable to such offenses, Gompers v. United States, 233 U. S. 604, 611, and which, as such an offense, may be pardoned by the President under Article II of the Constitution, Ex parte Grossman, 267 U. S. 87, 115. The only substantial difference between such a proceeding for criminal contempt and a criminal prosecution is that in the one the act complained of is the violation of a decree and in the other the violation of a law. Michaelson v. United States, 266 U. S. 42, 67. In Gompers v. United States, supra, 610, this Court said, in language which was quoted with approval in Ex parte Grossman, supra, 116: “It is urged . . . that con-tempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution' and the amendments giving a right to trial by jury &c. to persons charged with such crimes. ... It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure . . . , and that at least in England it seems that they still may be and preferably are" }, { "docid": "22864991", "title": "", "text": "charged with such crimes. But the provisions of the Constitution are not mathematical formulas having their essence in their, form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth. Robertson v. Baldwin, 165 U. S. 275, 281, 282. It does not follow that contempts of the class under consideration are not crimes, or rather, in the language'of the .statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such.. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in’English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure, 3 Transactions of the Royal Historical Society, N. S. p. 147 (1885), and that at least in England it seems that they still may be and preferably are tried in that way. See 7 Halsbury, Laws of England, 280, sub. v. Contempt of Court (604); Re Clements v. Erlanger, 46 L. J., N. S., pp. 375, 383. Matter of Macleod, 6 Jur. 461. Schreiber v. Lateward, 2 Dick. 592. Wellesley’s Case, 2 Russ. & M. 639, 667. In re Pollard, L. R. 2 P. C. 106, 120. Ex parte Kearney, 7 Wheat. 38, 43. Bessette v. W. B. Conkey Co., 194 U. S. 324, 328, 331, 332. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441.” The recent case of Michaelson v. United States fully bears out the same view. 266 U. S. 42, 66, 67. It is said, however, that whatever may be the scope of the word “ offenses ” in the particular statute construed in the Gompers Case, its association in the" }, { "docid": "22643466", "title": "", "text": "form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” Gompers v. United States, 233 U. S. 604, 610 (1914). Still less should this Court’s interpretations of the Constitution be reduced to the status of mathematical formulas. It is the considerations that gave birth to the phrase, “clear and present danger,” not the phrase itself, that are vital in our decision of questions involving liberties protected by the First Amendment. Although the First Amendment provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of constitutional government to survive. If it is to survive it must have power to protect itself against unlawful conduct and, under some circumstances, against incitements to commit unlawful acts. Freedom of speech thus does not comprehend the right to speak on any subject at any time. The important question that came to this Court immediately after the First World War was not whether, but how far, the First Amendment permits the suppression of speech which advocates conduct inimical to the public welfare. Some thought speech having a reasonable tendency to lead to such conduct might be punished. Justices Holmes and Brandéis took a different view. They thought that the greater danger to a democracy lies in the suppression of public discussion; that ideas and doctrines thought harmful or dangerous are best fought with words. Only, therefore, when force is very likely to follow an utterance before there is a chance for counter-argument to have effect may that utterance be punished or prevented. Thus, “the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State [or Congress] constitutionally may seek to prevent . . . Mr. Justice Brandeis, concurring in Whitney v. California, 274" }, { "docid": "22582977", "title": "", "text": "having taken part in some of the above mentioned publications, but need not be stated particularly, as all the acts of any substance in Mitchell’s case and all in that of Morrison were more than three years old when these proceedings began. The boycott against the Company was not called off until July 19 to 29, 1910, and it is argued that even if the statute applies the conspiracy was continuing until that date, United States v. Kissel, 218 U. S. 601, 607, and there-' fore that the Statute did not begin to run until then. But this is not an indictment for conspiracy, it is a charge of specific acts in disobedience of an injunction. The acts are not charged as evidence but as substantive offenses; each of them, so far as it was a contempt, was punishable as such, and was charged as such, and therefore each must be judged by itself; and so we come to what, as w;e already have intimated, is the real question in the case. It is urged in the first place that contempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution and the amendments giving a right to trial by jury &c. to persons charged with such crimes. But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their .origin and the line of their growth. Robertson v. Baldwin, 165 U. S. 275, 281, 282. It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute> offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These con-tempts are infractions of the law, visited with punishment as such. If such" }, { "docid": "22093181", "title": "", "text": "4 Wall. 277; cf. United States v. Lovett, 328 U. S. 303, especially in light of the fact that petitioner was explicitly warned in advance of the consequences of his refusal to answer. Likewise, there is no room for attributing to the Committee a surreptitious purpose to exclude Konigsberg by the device of putting to him questions which it was known in advance he would not answer, and then justifying exclusion on the premise of his refusal to respond. So far as this record shows Konigsberg was excluded only because his refusal to answer had impeded the investigation of the Committee, a ground of rejection which it is still within his power to remove. That view, which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble But as Mr. Justice Holmes once said: “[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” Gompers v. United States, 233 U. S. 604, 610. In this connection also compare the equally unqualified command of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” And see United States v. Miller, 307 U. S. 174. That the First Amendment immunity for speech, press and assembly has to be reconciled with valid but conflicting governmental interests was clear to Holmes, J. (“I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that" }, { "docid": "22334904", "title": "", "text": "shown, the section’s provision that a federal court may punish “at its discretion” the enumerated classes of contempts cannot reasonably be read to allow a court merely the choice between fines and imprisonment. We think the Court of Appeals correctly said: “The phrase 'at its discretion,’ does not mean that the court must choose between fine and imprisonment; the word ‘or/ itself provides as much and the words, if so construed, would have been redundant. The term of imprisonment is to be as much in the court’s discretion as the fine.” 241 F. 2d, at 634. We therefore turn to petitioners’ constitutional arguments. The claim is that proceedings for criminal con-tempts, if contempts are subject to prison terms of more than one year, must be based on grand jury indictments under the clause of the Fifth Amendment providing: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . .” (Italics added.) Since an “infamous crime” within the meaning of the Amendment is one punishable by imprisonment in a penitentiary, Mackin v. United States, 117 U. S. 348, and since imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year, 18 U. S. C. § 4083, petitioners assert that criminal contempts if subject to such punishment are infamous crimes under the Amendment. But this assertion cannot be considered in isolation from the general status of contempts under the Constitution, whether subject to “infamous” punishment or not. The statements of this Court in a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establish beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right. Although appearing to recognize this, petitioners nevertheless point out that punishment for criminal con-tempts cannot in any practical sense be distinguished from punishment for substantive crimes, see Gompers v. United, States, 233 U. S. 604, 610, and that contempt proceedings have traditionally been surrounded with many of" }, { "docid": "22334931", "title": "", "text": "249 U. S. 378; Cooke v. United States, 267 U. S. 517; Nye v. United States, 313 U. S. 33; Pendergast v. United States, 317 U. S. 412; United States v. White, 322 U. S. 694; In re Michael, 326 U. S. 224; Blau v. United States, 340 U. S. 332; Hoffman v. United States, 341 U. S. 479; Cammer v. United States, 350 U. S. 399. The materials on the basis of which this unbroken course of adjudication is proposed to be reversed have in fact been known in this country for almost half a century and were available to the Justices who participated in many of these decisions. The first of the studies of criminal contempt by Sir John Charles Fox, The King v. Almon, 24 Law Q. Rev. 184, appeared in 1908, and the results of the research of Solly-Flood were published as early as 1886. The Story of Prince Henry of Monmouth and Chief-Justice Gascoign, 3 Transactions of the Royal Historical Society (N. S.) 47. Mr. Justice Holmes, writing for the Court in Gompers v. United States, 233 U. S. 604 (1914), noted the work of Solly-Flood. He observed that: “It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure, 3 Transactions of the Royal Historical Society, N. S. p. 147 (1885), and that at least in England it seems that they still may be and preferably are tried in that way.” 233 U. S., at 610-611. Beginning with Ex parte" }, { "docid": "22864989", "title": "", "text": "1793, and the ruling by the United States Circuit Court in Henfield’s case, Fed. Case No. 6,360; Wharton’s State Trials, 49, in which Mr. Justice Wilson and Mr. Justice Iredell constituted the court, sustained this view. Mr. Warren, in his valuable history of this Court, Vol. I, p. 433, says that in the early years of the Court, Chief Justice Ellsworth and Justices Cushing, Paterson and Washington had also delivered opinions or charges of the same tenor. Justices Wilson and Paterson were members of the Constitutional Convention, and the former was one of the five on the Committee on Style which introduced the words “ offences against the United States ” into the pardon clause. We. can hardly assume under these circumstances that the words of the pardon clause were then used to include only statutory offenses against the United States and to exclude therefrom common law offenses in the nature of contempts against the dignity and authority of United States courts, merely because this Court more than twenty years later held that federal courts could only indict for statutory crimes though they might punish; for commomlaw contempts. Nothing in the ordinary meaning of the words “ of-fences against the United States ” excludes criminal con-tempts. That which violates the dignity and authority of federal courts such as an intentional effort to defeat their decrees justifying punishment violates a law of the United States (In re Neagle, 135 U. S. 1, 59, et seq.), and so must be an offense against the United States.. Moreover, this Court has held that the general statute of limitation which forbids prosecutions “ for any offense unless instituted within three years next after such offense shall have been committed,” applies to criminal contempts. Gompers v. United States, 233 U. S. 604. In that case this Court said (p. 610): “ It is urged in the first place that contempts'can not be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they aré not within the protection of the Constitution and the amendments giving a right to trial by jury &c. to persons" }, { "docid": "23449086", "title": "", "text": "cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution' and the amendments giving a right to trial by jury &c. to persons charged with such crimes. ... It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure . . . , and that at least in England it seems that they still may be and preferably are tried in that way.” And we think it clear that informations brought by the United States for the punishment of criminal contempts constituting offenses against the United States are. “ criminal cases ” within the meaning of the Criminal Appeals Act, in as real and substantial a sense as ordinary criminal prosecutions for the punishment of crimes.' See Bessette v. Conkey Company, 194 U. S. 324, 335 et seq. Whether the judgment sustaining the motion of the defendants in error and dismissing the information on the ground that the prosecution was barred by the statute of limitations, was a “ judgment sustaining a special plea in bar” within the meaning of the Act, is to'be determined not by form but by substance. United States v. Thompson, 251 U. S. 407, 412. The material question in such cases is the effect of the ruling sought to be reviewed. It is immaterial that the plea was erroneously designated as a plea in abatement instead of a plea in bar, United States v. Barber, 219 U. S. 72," }, { "docid": "22582979", "title": "", "text": "acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure, 3 Transactions of the Royal Historical Society, N. S. p. 147 (1885),-and that at least in England it seems that they still may be and preferably are tried in that way. See 7 Halsbury, Laws of England, 280, sub v. Contempt of Court (604); Re Clements v. Erlanger, 46 L. J., N. S., pp. 375, 383. Matter of Macleod, 6 Jur. 461. Schreiber v. Lateward, 2 Dick. 592; Wellesley’s Case, 2 Russ. & M. 639, 667. In re Pollard, L. R. 2 P. C. 106, 120. Ex parte Kearney, 7 Wheat. 38, 43. Bessette v. W. B. Conkey Co., 194 U. S. 324, 328, 331, 332. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441. We come then to the construction of the Statute. It has been assumed that the concluding words 'unless the indictment is found or the information is instituted within three years’ limit the offences given the benefit of the act to those usually prosecuted in that way, and the counsel for the petitioners were at some pains to argue that the charges of- the committee amounted to an information; a matter that opens vistas of antiquarian speculation. But this question is not. one to be answered by refinements and curious inquiries. — In- our opinion the proper interpretation of the Statute begins with the substantive not with the adjective part. The substantive portion of the section is that no person shall be .tried for any offence not capital except within a certain time. Those words are of universal scope. What follows is a natural way of expressing that the proceedings miist be begun within 3 years; (indictment and information being the usual modes by which they are begun and very likely .no other having occurred to those who drew the law. But it" }, { "docid": "22174467", "title": "", "text": "he made explicit what he left implicit in Shipp, supra: “It is urged in the first place that contempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution and the amendments giving a right to trial by jury .... It does not follow that contempts of the class under consideration are not crimes, or rather, . . . offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right.” At 610. In 1919 Chief Justice White in Ex parte Hudgings, 249 U. S. 378, restated the same principle in these words: “Existing within the limits of and sanctioned by the Constitution, the power to punish for contempt committed in the presence of the court is not controlled by the limitations of the Constitution as to modes of accusation and methods of trial generally safeguarding the rights of the citizen. . . . [The] only purpose is to secure judicial authority from obstruction in the performance of its duties to the end that means appropriate for the preservation and enforcement of the Constitution may be secured.” At 383. Finally, Mr. Justice Sutherland in Michaelson v. United States, 266 U. S. 42 (1924), in upholding the constitutionality of the sections of the Clayton Act contained in 18 U. S. C. §§ 402 and 3691, said that these provisions were of “. . . narrow scope, dealing with the single class where the act or thing constituting the contempt is also a crime in the ordinary sense. It does not interfere with the power to deal summarily with con-tempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, and is in express terms carefully limited to the cases of contempt specifically defined. Neither do we think it purports to reach cases of failure or refusal to comply affirmatively with a decree — that is to do something which a decree commands .... If" }, { "docid": "22334905", "title": "", "text": "of the Amendment is one punishable by imprisonment in a penitentiary, Mackin v. United States, 117 U. S. 348, and since imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year, 18 U. S. C. § 4083, petitioners assert that criminal contempts if subject to such punishment are infamous crimes under the Amendment. But this assertion cannot be considered in isolation from the general status of contempts under the Constitution, whether subject to “infamous” punishment or not. The statements of this Court in a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establish beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right. Although appearing to recognize this, petitioners nevertheless point out that punishment for criminal con-tempts cannot in any practical sense be distinguished from punishment for substantive crimes, see Gompers v. United, States, 233 U. S. 604, 610, and that contempt proceedings have traditionally been surrounded with many of the protections available in a criminal trial. But this Court has never suggested that such protections included the right to grand jury indictment. Cf. Savin, Petitioner, 131 U. S. 267, 278; Gompers v. United States, supra, at 612. And of course the summary procedures followed by English courts prior to adoption of the Constitution in dealing with many contempts of court did not embrace the use of either grand or petit jury. See 4 Blackstone Commentaries 283-287. It would indeed be anomalous to conclüde that contempts subject to sentences of imprisonment for over one year are “infamous crimes” under the Fifth Amendment although they are neither “crimes” nor “criminal prosecutions” for the purpose of jury trial within the meaning of Art. Ill, § 2, and the Sixth Amendment. We are told however that the decisions of this Court denying the right to jury trial in criminal contempt proceedings are based upon an “historical error” reflecting a misunderstanding as to the scope of the power of English courts at the early common law to try summarily" }, { "docid": "22344815", "title": "", "text": "within the terms of the statute partake of the nature of crimes in all essential particulars. “ So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure, 3 Transactions of the Royal Historical Society, N. S. p. 147 (1885), and that at least in England it seems that they still may be and preferably are tried in that way.” Gompers v. United States, 233 U. S. 604, 610-611. This is also pointed out by counsel in the case of O’Shea v. O’Shea and Parnell, L. R. 15 Prob. Div. 59, 61; and, in the course of one of the opinions in that case, it is said (p. 64): “ The offence of the appellant [criminal contempt] is certainly a criminal offence. I do not say that it is an indictable offence, but, whether indictable or not, it is a criminal offence, and it is an offence, and the only offence that I know of, which is punishable at common law by summary process.” The proceeding is not between the parties to the original suit but between the public and the defendant. The only substantial difference between such a proceeding as we have here, and a criminal prosecution by indictment or information is that in the latter the act complained of is the violation of a law and in the former the violation of a decree. In the case of the latter, the accused has a constitutional right of trial by jury; while in the former he has not. The statutory extension of this constitutional right to a class of contempts which are properly described as “ criminal offences ” does not, in our opinion, invade the powers of the courts as intended by the Constitution or violate that instrument in any other way. Second. We come, then, to consider the reasons which, assuming the validity of the statute, are nevertheless urged to preclude the right to a jury trial. The first contention is that petitioners were not “ employees ” within the meaning of the" }, { "docid": "22582978", "title": "", "text": "in the first place that contempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution and the amendments giving a right to trial by jury &c. to persons charged with such crimes. But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their .origin and the line of their growth. Robertson v. Baldwin, 165 U. S. 275, 281, 282. It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute> offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These con-tempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure, 3 Transactions of the Royal Historical Society, N. S. p. 147 (1885),-and that at least in England it seems that they still may be and preferably are tried in that way. See 7 Halsbury, Laws of England, 280, sub v. Contempt of Court (604); Re Clements v. Erlanger, 46 L. J., N. S., pp. 375, 383. Matter of Macleod, 6 Jur. 461. Schreiber v. Lateward, 2 Dick. 592; Wellesley’s Case, 2 Russ. & M. 639, 667. In re Pollard, L. R. 2 P. C. 106, 120. Ex parte Kearney, 7 Wheat. 38, 43. Bessette v. W. B. Conkey Co., 194 U. S. 324, 328, 331, 332. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441. We come then to the construction of" }, { "docid": "22334944", "title": "", "text": "The Constitution and Bill of Rights declare in sweeping unequivocal terms that “The Trial of all Crimes . . . shall be by Jury,” that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” and that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” As it may now be punished criminal contempt is manifestly a crime by every relevant test of reason or history. It was always a crime at common law punishable as such in the regular course of the criminal law. It possesses all of the earmarks commonly attributed to a crime. A mandate of the Government has allegedly been violated for which severe punishment, including long prison sentences, may be exacted — punishment aimed at chastising the violator for his disobedience. As Mr. Justice Holmes irrefutably observed for the Court in Gompers v. United States, 233 U. S. 604, at 610-611: “These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure . . . and that at least in England it seems that they still may be and preferably are tried in that way.” This very case forcefully illustrates the point. After surrendering the defendants were charged with fleeing from justice, convicted, and given lengthy prison sentences designed to punish them for their flight. Identical flight has now been made a statutory crime by the Congress with severe penalties. How can it possibly be any more of a crime to be convicted of disobeying a statute and sent to jail for three years than to be found guilty of violating a judicial decree forbidding precisely the same conduct and imprisoned for the same term? The claim" }, { "docid": "22334932", "title": "", "text": "Court in Gompers v. United States, 233 U. S. 604 (1914), noted the work of Solly-Flood. He observed that: “It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure, 3 Transactions of the Royal Historical Society, N. S. p. 147 (1885), and that at least in England it seems that they still may be and preferably are tried in that way.” 233 U. S., at 610-611. Beginning with Ex parte Robinson, 19 Wall. 505, and In re Chiles, 22 Wall. 157, this list includes every Justice who sat on the Court since 1874, with the exception of Mr. Justice Woods (1881-1887), and Mr. Justice Byrnes (1941-1942). “We do not write on a blank sheet. The Court has its jurisprudence, the helpful repository of the deliberate and expressed convictions of generations of sincere minds addressing themselves to exposition and decision, not with the freedom of casual critics or even of studious commentators, but under the pressure and within the limits of a definite official responsibility.” Chief Justice Hughes speaking on the occasion of the 150th anniversary of the Court. 309 U. S. xiv. Mr. Justice Black, with whom The Chief Justice and Mr. Justice Douglas concur, dissenting. The power of a judge to inflict punishment for criminal contempt by means of a summary proceeding stands as an anomaly in the law. In my judgment the time has come for a fundamental and searching reconsideration of the validity of this power which has aptly been characterized by" } ]

[ { "docid": "3598588", "title": "", "text": "“package.” Moreover, the real parties in interest in this kind of case may be the marine insurers themselves, so that it is no answer to say that the availability of marine insurance is the determinative factor. As Chief Judge Friendly points out in Leather’s Best, 451 F.2d at 815: “ . . . for all we know, a ruling that each bale constituted a ‘package’ may simply be conferring a windfall on the cargo insurer . . . if it based its premium on the assumption that [the carrier’s] liability was limited to $500.” The statutory purpose here leads us to suggest what for want of a better term we will call the functional economics test. In this regard, the first question in any container case is whether the contents of the container could have feasibly been shipped overseas in the individual packages or cartons in which they were packed by the shipper. Here it is plain that they could not feasibly have been shipped in those individual cartons ; adding machines are a delicate product — their little cardboard cartons, stapled and paper-taped, had never been shipped as such; in the days before containers they were shipped in wooden crates or cases containing 12 to 24 each. The metal containers in which the cartons were shipped in lots of 350 per container are essentially to be likened to the wooden crates or cases of days past; the use of the metal container of convenience to shipper and carrier alike was selected by the shipper and used without carrier objection. This court, in a different factual context in Nichimen Co. v. M.V. Farland, 462 F.2d 319, 334 (2d Cir. 1972), referred to Black’s Law Dictionary 1262 (4th ed. 1951), which defines a package as a “bundle put up for transportation or commercial handling a thing in form suitable for transportation or handling.” Until the adding machine cartons were packed in the container in question they were not suitable for ocean transportation or handling. We suggest that underlying Leather’s Best, supra, is the concept that the “bales” there could have been" } ]

[ { "docid": "15517739", "title": "", "text": "it is apparent that under Kulmerland the cases of tinned hams and the pallets of tinned hams respectively met the functional packaging unit test of Kulmerland and accordingly put the burden of proof on the carrier to supply evidence that the parties intended to treat the container as a package. This the carrier did not do. Here the use of the container was as much for the shipowner’s benefit as for the shipper’s. Here the ship was a containership, and these goods could not have been shipped by way of the ship absent a refrigerated container, since there was no refrigeration as such in the ship. Here a 10 per cent discount was supplied the shipper on the basis that the carrier could avoid stuffing and unstuffing or loading and unloading costs thereby. Here the trucker who carted the carrier’s container was the carrier’s agent. He was present at the shipper’s tally and count and could have participated in it. Here the bill of lading specifically set forth the number of cartons of tinned hams and the respective number of tins and weight per tin in each carton, unlike the one container said to contain machinery in the Kulmerland case or the one container said to contain household goods in the Rosenbruch case. Here as in Leather’s Best, supra, the bill of lading described the goods as one container “s/t/c” a specific number of cartons or bales, etc. In short, under our cases the conclusion of the district court was correct, and it is consistent with them. As to the Kulmerland test, it may be added that from the shipper’s point of view, where his goods are already packaged for export and possibly thereby for distribution like the cartons of tinned hams here, should he be penalized (by having to pay for extra insurance which is usually cheaper than declaring and paying the carrier for excess value) for shipping by container, at least where as here the use of the container is for mutual benefit? Where the cargo is not so packaged, the shipper will have to overcome the presumption" }, { "docid": "22267247", "title": "", "text": "evidence on the point one way or the other, and the shipper had advanced no such argument. As the lower courts and commentators recognized, the clear holding of Leather’s Best was that carrier-furnished containers whose contents are fully disclosed are not COGSA packages. Under the functional economics test, however, many such containers would be COGSA packages, since few shippers would incur the wasteful expense of supplying packaging unnecessary for container shipments simply to avoid having the container deemed the package. Since the case before us involves carrier-furnished containers whose contents were disclosed to the respective carriers, we must apply the square holding of Leather’s Best —unless that decision can fairly be distinguished — and not the inconsistent test announced in Kulmerland. We therefore do not consider ourselves bound by the Kulmerland test, and do not regard its analysis as helpful to the case before us. Although we have little difficulty with the suggestion that cartons, crates and other units that were treated as COG-SA packages when they were shipped breakbulk should ordinarily continue to be so treated when they are shipped in containers, we do not discern a proper basis for the other half of the Kulmerland test, i. e., the rule that the container is presumptively the package where the units inside are not suitable for breakbulk shipment. Even if this might tend to show that each of those units is not a package — a conclusion that is by no means, ineluctable — it does not at all follow that the container is. It could just as reasonably, indeed far more reasonably, be the case that the goods are “not shipped in packages” at all — a class of cargo specifically provided for in § 4(5). Kulmerland does not explain why carrier-furnished containers stowed with fully described units unsuitable for breakbulk shipment constitute packages despite our earlier recognition in Leather’s Best, since reinforced by the Supreme Court in Northeast Marine Terminal Co., Inc. v. Caputo, supra, 432 U.S. at 270, 97 S.Ct. at 2360, that a container is “functionally a part of the ship”, 451 F.2d at 815." }, { "docid": "22769235", "title": "", "text": "Meanwhile the courts must wrestle with a statutory provision that has become ill-suited to present conditions. Defendants place great reliance on the decision of a divided court in Standard Eléctrica, from which we have quoted, holding that where a shipper had made up nine pallets each containing six cardboard cartons of television timers, the pallet rather than the cartons constituted the “package.” However, several factors distinguish Standard Eléctrica from this case. The pallets were nothing like the size of the container here; they had been made up by the shipper; and the “dock receipt, the bill of lading, and libellant’s claim letter all indicated that the parties regarded each pallet as a package.” 375 F.2d at 946. Indeed, there seems to have been nothing in the shipping documents in that case that gave the carrier any notice of the number of cartons. We recognize that this distinction is not altogether satisfactory; it leaves open, for example, what the result would be if Freudenberg had packed the bales in a container already on its premises and the bill of lading had given no information with respect to the number of bales. There is a good deal in Judge Hays’ point in his dissent in the Encyclopaedia Britanniea case, see fn. 16, “that considering the containers as the packages promotes uniformity and predictability,” at least where it contains goods of a single shipper. It is true also that the standard arguments about the economic power of the carrier and the weak bargaining position of the consignor 1 may be simply a recitation of an ancient ^shibboleth, at least as applied to ship\\ments of containers fully packed by the shipper. The shipper insures for any value in excess of the limitation (or perhaps for the whole value) and, for all we know, a ruling that each bale constituted a “package” may simply be conferring a windfall on the cargo insurer, admittedly the true plaintiff here, if it based its premium on the assumption that Mooremac’s liability was limited to $500. Still we cannot escape the belief that the purpose of § 4(5) of" }, { "docid": "9945035", "title": "", "text": "a “package” under COGSA if COGSA had applied ex proprio vigore. . In Hanover Insurance Company v. Drake Marine, 440 F.Supp. 686 (D.P.R.1977), the bill of lading for the shipment from New York to San Juan, Puerto Rico apparently incorporated COGSA. . E. g., Standard Electrica, S. A. v. Hamburg Sudamerikanische, Etc., 375 F.2d 943 (2d Cir. 1967), cert. den. 389 U.S. 831, 88 S.Ct. 97, 19 L.Ed.2d 89 (1967) (9 palletized groups, each consisting of 6 cardboard cartons, held to be 9 “packages”); Menley and James Lab., Ltd. v. M/V Hellenic Splendor, 433 F.Supp. 252 (S.D. N.Y.1977) (9 palletized groups of 163 cartons held to be 9 “packages”); Omark Industries v. Associated Container, Etc., 420 F.Supp. 139 (D.Or.1976) (each palletized group of approximately 20-26 cardboard cartons held to be a “package”). . E. g., Rosenbruch v. American Export Isbrandtsen Lines, Inc., 543 F.2d 967 (2d Cir. 1976), cert. den. 429 U.S. 939, 97 S.Ct. 353, 50 L.Ed.2d 308 (1976) (household goods packed by shipper’s agent in large container supplied by the carrier held to be 1 “package”); DuPont de Nemours International S. A. v. S. S. Mormacvega, 493 F.2d 97 (2d Cir. 1974), aff’g 367 F.Supp. 793 (S.D.N.Y.1972) (38 pallets of resin synthetic liquid in a 40 ft. ocean shipping container held to be 38 “packages”); Royal Typewriter Co., Div. Litton Bus. Sys. Inc. v. M/V Kulmerland, 483 F.2d 645 (2d Cir. 1973) (350 cartons of adding machines loaded by shipper’s agent in large ocean shipping container of shipper’s agent held to be 1 “package”); Matsushita Elec. Corp. v. S. S. Aegis Spirit, 414 F.Supp. 894 (W.D.Wash.1976) (a number of cartons in a large ocean shipping container supplied by the carrier held to constitute the number of “packages”). . E. g., Shinko Boeki Co. Ltd. v. S. S. “Pioneer Moon,” 507 F.2d 342 (2d Cir. 1974) (24 2,000-gal. tanks furnished by the carrier, used for transporting liquid latex, held not to be “packages”). . E. g., Wirth Ltd. v. S/S Acadia Forest, 537 F.2d 1272 (5th Cir. 1976), reh. en banc den. 541 F.2d 281 (5th Cir. 1976) (LASH" }, { "docid": "22267278", "title": "", "text": "carrier must still be subject to a level of liability for loss or damage to cargo sufficient to induce it to take precautions to protect the cargo in addition to what it would take to protect the vessel, the prospect of a $500 judgment would be plainly insufficient. See footnote 9 supra. For reasons already stated, id., it is likewise not a sufficient answer that the shipper could have declared a higher value. . This is especially so since in most cases they would already have fully insured. . Treating containers as COGSA packages is not necessary to protect the carrier from liability for loss or damage resulting from insufficient packing by the shipper; the carrier can not be held liable at all in that situation. 46 U.S.C. § 1304(2)(n). . See also Shinko Boeki Co., Ltd. v. S.S. “Pioneer Moon\", 507 F.2d 342, 345 (2 Cir. 1974) (dealing with shipment of a liquid) (“Although large size and heavy weight, with probable consequent high value, do not mandate the conclusion that a particular shipment is not a ‘package’ ..., they at least suggest the need for careful scrutiny of the entire transaction to ascertain whether the complaining shipper in fact did any ‘packaging’.”). . The panel in Rosenbruch v. American Export Isbrandtsen Lines, Inc., supra, 543 F.2d 967, considered its decision to be consistent with both Leather’s Best, which the district court had taken as the governing rule, 357 F.Supp. 982, 983-84 (S.D.N.Y.1973), and Kulmerland. The decision, which dealt with a shipment of wholly unpacked household goods placed in a carrier-owned container by the shipper’s forwarder, where no notice had been given of the number of units inside the container, has been characterized as giving only “token recognition to the ‘functional economics test’ ”. See Complaint of Norfolk, Baltimore & Carolina Line, Inc., 478 F.Supp. 383, 391 (E.D.Va.1979). Characterizing the case as “about as clear a one as we have seen for holding that the container constituted a package for the purposes of Section 4(5) of COGSA”, 543 F.2d at 970, the opinion rested heavily on the fact, id., that" }, { "docid": "22769236", "title": "", "text": "the bill of lading had given no information with respect to the number of bales. There is a good deal in Judge Hays’ point in his dissent in the Encyclopaedia Britanniea case, see fn. 16, “that considering the containers as the packages promotes uniformity and predictability,” at least where it contains goods of a single shipper. It is true also that the standard arguments about the economic power of the carrier and the weak bargaining position of the consignor 1 may be simply a recitation of an ancient ^shibboleth, at least as applied to ship\\ments of containers fully packed by the shipper. The shipper insures for any value in excess of the limitation (or perhaps for the whole value) and, for all we know, a ruling that each bale constituted a “package” may simply be conferring a windfall on the cargo insurer, admittedly the true plaintiff here, if it based its premium on the assumption that Mooremac’s liability was limited to $500. Still we cannot escape the belief that the purpose of § 4(5) of COGSA was to set a reasonable figure below which the carrier should not be permitted to limit his liability and that “package” is thus more sensibly related to the unit in which the shipper packed the goods and described them than to a large metal object, functionally a part of the ship, in which the carrier caused them to be “contained.” We therefore hold that, under the circumstances of this case, the legend in the lower-left hand corner of the bill of lading was an invalid limitation of liability under COGSA. IV. However, this does not inevitably lead to the conclusion that the limitation was invalid as applied to a loss after the cargo had been landed. The framers of COGSA were at considerable pains to make clear that it applies only to “the carriage of goods by sea to or from ports of the United States, in foreign trade.” 46 U.S.C. § 1300 (enacting clause). Section 1(e) defines “carriage of goods” as covering “the period from the time when the goods are loaded on" }, { "docid": "3598589", "title": "", "text": "product — their little cardboard cartons, stapled and paper-taped, had never been shipped as such; in the days before containers they were shipped in wooden crates or cases containing 12 to 24 each. The metal containers in which the cartons were shipped in lots of 350 per container are essentially to be likened to the wooden crates or cases of days past; the use of the metal container of convenience to shipper and carrier alike was selected by the shipper and used without carrier objection. This court, in a different factual context in Nichimen Co. v. M.V. Farland, 462 F.2d 319, 334 (2d Cir. 1972), referred to Black’s Law Dictionary 1262 (4th ed. 1951), which defines a package as a “bundle put up for transportation or commercial handling a thing in form suitable for transportation or handling.” Until the adding machine cartons were packed in the container in question they were not suitable for ocean transportation or handling. We suggest that underlying Leather’s Best, supra, is the concept that the “bales” there could have been shipped individually rather than in the container ultimately held not to be a “package.” See note 9 supra. Here, however, the individual cartons containing one adding machine each were simply not packing units suitable for overseas shipment. We view Leather’s Best as holding that, where the shipper’s own packing units are functional, a presumption is created that a container is not a “package” which must be overcome by evidence supplied by the carrier that the parties intended to treat it as such. Thus, this case is clearly distinguishable from Leather’s Best. When, as here, the shipper’s own individual units are not functional or usable for overseas shipment the burden shifts to the shipper to show why the container should not be treated as the “package.” The shipper has not met that burden here. While in Standard Eléctrica it is unclear whether or not the cartons could have been shipped as a practical matter in the absence of pallets, note 9 supra, we treat that case in its own language as one in which the parties’" }, { "docid": "15517741", "title": "", "text": "that he used the container itself as a package. Whether or not there is economic waste created by a shipper packing in functional units when a container is available depends on whether the goods would have to be repacked for distribution if not functionally packaged at the place of origin. Knowing where the presumption lies, the shipper may still decide it is more economical to use the container as a package when it is more expensive to package the goods rather than insure them, such as household goods in Rosenbruch. From the carrier’s point of view, while it is argued, DeOrchis, supra, that the carrier has no way of knowing how the goods inside a sealed container are packed, the carrier can through its agents, as here, be present even at a “house to house” container stuffing, or can require greater specificity in the bill of lading. If the carrier is not present at the container loading and has no other means of obtaining information as to what is inside the container — such as by the data inserted in the bill of lading (the accuracy of which has to be proved at trial, as it was here, whenever cartons are considered packages) — he might then be able to overcome the burden of proof imposed upon him by Kulmerland in the case of export-type packages shipped by container. We are aware that the ultimate question in a cargo case is usually one of allocation between the cargo underwriter on the one hand and the protection and indemnity (P & I) insurer of the carrier on the other. See Diplock, supra. The gross cost of transportation insurance to the cargo owner includes the premium he pays his own underwriter directly plus the carrier’s insurance expense which is built into the freight rate and covers the risks the carrier undertakes in the bill of lading or that are imposed upon him by law. Utilizing a burden of proof which allocates risks according to the manner in which goods are initially packaged will, perhaps, until some better test is devised, give more" }, { "docid": "140235", "title": "", "text": "disputes that the cargo was packaged; the issue is whether the cartons or the pallets should be considered “packages.” The machinery cases are pertinent insofar as they indicate that the parties’ expressed agreement is an important, if not controlling, factor. The use of containers to ship goods created another area of contention. Containers are very large, oblong metal boxes, resembling trucks without wheels or cabs. Indeed, “[i]n some instances an entire trailer may be uncoupled from its tractor-truck on the pier and placed aboard the carrier.” Standard Electrica, supra, 375 F.2d at 945. Naturally, carriers and their insurers attempted to turn this technological advance into a financial one too, by arguing that containers are “packages” for which shippers can recover only $500. The courts, however, rejected this attempt, holding that they could not “escape the belief that the purpose of § 4(5) of COGSA was to set a reasonable figure below which the carrier should not be permitted to limit his liability and that ‘package’ is thus more sensibly related to the unit in which the shipper packed the goods and described them than to a large metal object, functionally a part of the ship, in which the carrier caused them to be ‘contained,’ ” Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 815 (2d Cir. 1971) (footnote omitted) (emphasis supplied). Expanding upon the distinct characteristics of containerization, this court has written: The container revolution added a new dimension to the problem. See generally Schmeltzer & Peavy, Prospects and Problems of the Container Revolution, 1 JML&C 203 (1970). In contrast to the wooden pallets in Standard Eléctrica, which were 39\" in length, 33\" in width and 42\" in height and carried only six cartons each, containers are large metal boxes resembling truck trailers save for the absence of wheels, roughly 8' high, 8' wide and with lengths up to 40', see Simon, The Law of Shipping Containers, 5 JML&C 507, 510 (1974), capable of carrying hundreds of packages in the normal sense of that term. Unlike the pallets in Standard Eléctrica, which were provided by the shipper, containers are" }, { "docid": "22267250", "title": "", "text": "“ ‘common sense test’ under which all parties concerned can allocate responsibility for loss at the time of contract, purchase additional insurance if necessary, and thus ‘avoid the pains of litigation’ ”, 483 F.2d at 649, citing Standard Electrica, supra, 375 F.2d at 945, is illusory. Only a few reasons need be stated. How is the shipper to know in advance whether his packages will pass the “functional” test? How particularly is the carrier to know since, unless he has engaged in the waste of sending a representative to the shipper’s plant, he will not even know what the packages are? Finally, what basis is there for thinking that the shipper will decide to “purchase additional insurance” depending on his guess that his package may not survive the functional test? In fact, as noted above, he will have almost always purchased full insurance already. In Cameco, Inc. v. S.S. American Legion, 514 F.2d 1291 (2 Cir. 1974), where Judge Feinberg, concurring specially, expressed doubts about the Kulmerland test, the author of Kulmerland recognized some of these criticisms in an opinion joined by one other judge but did not fully answer them. The result in Cameco is entirely consistent with Leather’s Best, since the court refused to apply the package limitation to a container which was supplied by the carrier and whose contents were fully disclosed in the bill of lading, holding that the limitation instead applied to the cartons of canned hams, some of which were shipped on pallets. Recent district court opinions in other circuits indicate that the likelihood of general acceptance of the functional economics test is small. The outstanding such opinion is that of Judge Beeks, an experienced ad miralty lawyer before his appointment to the bench, in Matsushita Electric Corp. v. S.S. Aegis Spirit, 414 F.Supp. 894 (1976), in the Western District of Washington, a district with many maritime cases. After observing that our decisions in Leather’s Best, supra, and Shinko Boeki Co. v. S.S. “Pioneer Moon”, 507 F.2d 342 (2 Cir. 1974), on the one hand, and Kulmerland and Cameco, supra, on the other, are" }, { "docid": "3598590", "title": "", "text": "shipped individually rather than in the container ultimately held not to be a “package.” See note 9 supra. Here, however, the individual cartons containing one adding machine each were simply not packing units suitable for overseas shipment. We view Leather’s Best as holding that, where the shipper’s own packing units are functional, a presumption is created that a container is not a “package” which must be overcome by evidence supplied by the carrier that the parties intended to treat it as such. Thus, this case is clearly distinguishable from Leather’s Best. When, as here, the shipper’s own individual units are not functional or usable for overseas shipment the burden shifts to the shipper to show why the container should not be treated as the “package.” The shipper has not met that burden here. While in Standard Eléctrica it is unclear whether or not the cartons could have been shipped as a practical matter in the absence of pallets, note 9 supra, we treat that case in its own language as one in which the parties’ apparent intent was given “considerable weight,” 375 F.2d at 946: the pallets there were characterized by the parties as packages. Absent shipment in a functional packing unit, the burden is on the shipper to show by other evidence that his units are themselves “packages.” Only then does custom and usage in the trade, the parties’ own characterization or treatment of the items being shipped in supporting documentation or otherwise, and any other factor bearing on the parties’ intent become relevant, as in Standard Eléctrica or Leather’s Best. The “functional package unit” test we propound today is designed to provide in a case where the shipper has chosen the container a “common sense test” under which all parties concerned can allocate responsibility for loss at the time of contract, purchase additional insurance if necessary, and thus “avoid the pains of litigation.” Standard Eléctrica, supra, 375 F.2d at 945. Judgment affirmed. . The abbreviation “s.t.c.” means “said to contain.” . Judge Tyler did note that “[t]he physical appearance of container 89 was unlike that of the metal" }, { "docid": "13123573", "title": "", "text": "and result notwithstanding periodic attempts by that court to harmonize them. On the one hand, two comparatively recent Second Circuit decisions written by then Chief Judge Friendly, Leather’s Best, Inc. v. S.S. MORMACLYNX (1971) and Shinko Boeki Co., Ltd. v. S.S. PIONEER MOON (1974), strongly suggest that a carrier-owned container ought never to be considered a “package” consistent with the spirit and language of COGSA’s liability limiting provisions. These cases emphasize that the nature and use of these containers is such that they are “functionally part of the ship”, and that Article 4(5) of COGSA (46 U.S.C. § 1304(5)) refers, rather, to the shipper’s own packaging which is an integral part of his shipment. A markedly different view is espoused in two other Second Circuit decisions including that circuit’s most recent pronouncement in Cameco, Inc. v. S.S. AMERICAN LEGION (1974). In both Cameco and its forerunner in rationale, Royal Typewriter Co., Division of Litton Bus. Sys., Inc. v. M/V KULMERLAND (1973), the Second Circuit in opinions by Judge Oakes instituted and applied a “functional economics” test which deemed the shipper’s own carton or crate, rather than the container, a presumptive “COGSA package” if the carton or crate incorporates packaging sturdy enough to withstand the rigors of break bulk carriage. If the shipper’s package meets this test, it is deemed to be what the Court called a “functional package.” If, however, the Court finds the cargo, as packaged by the shipper, unsuited to break bulk carriage, a contrary presumption obtains — that is, the container itself becomes the presumptive COGSA package. In either case the presumption can be rebutted by evidence of an intention by the contracting parties to treat as a COGSA package something other than the presumptive package. Therefore, Cameco and Royal Typewriter taken together propound a completely “neutral” formula — from a judicial standpoint— for determining whether and when a ship’s container is a COGSA package. Furthermore, under the Cameco/Royal Typewriter analysis, the intent of the parties is made the ultimate determinant in identifying the COGSA package. These characteristics of the Cameco/Royal Typewriter test are not easily reconciled" }, { "docid": "140238", "title": "", "text": "Cir. 1973). In Mitsui & Co. v. American Export Lines, Inc., supra, however, this court firmly retreated from the “functional economics test,” noting that “[t]his opinion [abandoning the Kulmerland analysis] was circulated to all active judges of the Court prior to filing.” 636 F.2d at 821 n.*. Instead, the court reaffirmed its holding in Leather’s Best, Inc. v. S.S. Mormaclynx, supra: “at least when what would ordinarily be considered packages are shipped in a container supplied by the carrier and the number of such units is disclosed in the shipping documents, each of those units and not the container constitutes the ‘package.’ ” Mitsui & Co. v. American Export Lines, Inc., supra, 636 F.2d at 817. The rationale for this rule is that the “functional economies test” would force the parties to guess about their COGSA status and therefore would cause shippers to “incur the wasteful expense of supplying packaging unnecessary for container shipment simply to avoid having the container deemed the package.” Id. at 818. The opinion in Leather’s Best, Inc. v. S.S. Mormaclynx, supra, left unanswered “what the result would be if [the shipper] had packed the [cargo] in a container already on its premises and the bill of lading had given no information with respect to the number of [units].” 451 F.2d at 815. In Leather’s Best, the bill of lading indicated the “Number and kind of packages” to be “1 container s.t.c. [said to contain] 99 bales of leather.” 451 F.2d at 804. (A bale consisted of a carton 4' by 2' by \\W with steel straps around it.) Given the contractual descriptions of the cargo, and the fact that the carrier supplied the container and had an employee observe its loading, the court held that each bale constituted a package. The opinion, however, admitted “the possibility that there might be some instances where a container might be the package, e.g., when the shipping documents, like those in Standard Electrica, gave the carrier no information as to the contents.” Mitsui & Co. v. American Export Lines, Inc. supra, 636 F.2d at 817. In those cases which" }, { "docid": "22267277", "title": "", "text": "(S.D.Fla.1970). That case involved cartons of frozen shrimp shipped in a freezer trailer. Relying largely on the Protocol to amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, done at Brussels on 25th August 1924, adopted at Brussels, February 23, 1968 (hereinafter referred to as the 1968 Brussels Protocol), cf. pages 820-821, infra, the court held that each carton constituted a package under § 4(5), 313 F.Supp. at 1337-39. . Under the Kulmerland rationale the carrier’s maximum liability for the 350 cartons of adding machines worth approximately $29,000 would be limited to the token amount of $500 even if the bill of lading disclosed the number of cartons and the nature of the machinery. This would be reminiscent of the precise evil which the Brussels Convention and COGSA were designed to remedy. It is of no moment that in fact the loss would doubtless fall on the shipper’s cargo insurer. In light of Lord Diplock’s admonition, supra, that assuming both carrier and shipper are fully insured, the carrier must still be subject to a level of liability for loss or damage to cargo sufficient to induce it to take precautions to protect the cargo in addition to what it would take to protect the vessel, the prospect of a $500 judgment would be plainly insufficient. See footnote 9 supra. For reasons already stated, id., it is likewise not a sufficient answer that the shipper could have declared a higher value. . This is especially so since in most cases they would already have fully insured. . Treating containers as COGSA packages is not necessary to protect the carrier from liability for loss or damage resulting from insufficient packing by the shipper; the carrier can not be held liable at all in that situation. 46 U.S.C. § 1304(2)(n). . See also Shinko Boeki Co., Ltd. v. S.S. “Pioneer Moon\", 507 F.2d 342, 345 (2 Cir. 1974) (dealing with shipment of a liquid) (“Although large size and heavy weight, with probable consequent high value, do not mandate the conclusion that a particular shipment is" }, { "docid": "15517740", "title": "", "text": "and the respective number of tins and weight per tin in each carton, unlike the one container said to contain machinery in the Kulmerland case or the one container said to contain household goods in the Rosenbruch case. Here as in Leather’s Best, supra, the bill of lading described the goods as one container “s/t/c” a specific number of cartons or bales, etc. In short, under our cases the conclusion of the district court was correct, and it is consistent with them. As to the Kulmerland test, it may be added that from the shipper’s point of view, where his goods are already packaged for export and possibly thereby for distribution like the cartons of tinned hams here, should he be penalized (by having to pay for extra insurance which is usually cheaper than declaring and paying the carrier for excess value) for shipping by container, at least where as here the use of the container is for mutual benefit? Where the cargo is not so packaged, the shipper will have to overcome the presumption that he used the container itself as a package. Whether or not there is economic waste created by a shipper packing in functional units when a container is available depends on whether the goods would have to be repacked for distribution if not functionally packaged at the place of origin. Knowing where the presumption lies, the shipper may still decide it is more economical to use the container as a package when it is more expensive to package the goods rather than insure them, such as household goods in Rosenbruch. From the carrier’s point of view, while it is argued, DeOrchis, supra, that the carrier has no way of knowing how the goods inside a sealed container are packed, the carrier can through its agents, as here, be present even at a “house to house” container stuffing, or can require greater specificity in the bill of lading. If the carrier is not present at the container loading and has no other means of obtaining information as to what is inside the container — such as" }, { "docid": "13123572", "title": "", "text": "container operations, personally insure a tight stow and the careful handling of his goods, because he has the responsibility to stuff the containers under the carriage contract. The carrier, for its part, enjoys tremendous savings in labor by eliminating slow, manual handling and stowing of individual packages and in claim payments by reason of reduced cargo loss and damage. Although shippers and freight forwarders sometimes acquire their own fleets of containers, carriers are the predominant owners of containers used in maritime commerce. II. Prior Case Law The Court of Appeals to which I am accountable has yet to speak to the question of when, if ever, a container is to be considered a “package”. In contrast, the Second Circuit has had occasion to pass on this question in a series of recent cases and, in the process, has become a chief source of guidance in this most troublesome area. Unfortunately, however, the decisions of the Second Circuit expounding the impact of the package limitations statute on containerized shipments have not been altogether congruous in approach and result notwithstanding periodic attempts by that court to harmonize them. On the one hand, two comparatively recent Second Circuit decisions written by then Chief Judge Friendly, Leather’s Best, Inc. v. S.S. MORMACLYNX (1971) and Shinko Boeki Co., Ltd. v. S.S. PIONEER MOON (1974), strongly suggest that a carrier-owned container ought never to be considered a “package” consistent with the spirit and language of COGSA’s liability limiting provisions. These cases emphasize that the nature and use of these containers is such that they are “functionally part of the ship”, and that Article 4(5) of COGSA (46 U.S.C. § 1304(5)) refers, rather, to the shipper’s own packaging which is an integral part of his shipment. A markedly different view is espoused in two other Second Circuit decisions including that circuit’s most recent pronouncement in Cameco, Inc. v. S.S. AMERICAN LEGION (1974). In both Cameco and its forerunner in rationale, Royal Typewriter Co., Division of Litton Bus. Sys., Inc. v. M/V KULMERLAND (1973), the Second Circuit in opinions by Judge Oakes instituted and applied a “functional economics”" }, { "docid": "15517736", "title": "", "text": "a container shipment consisting of 99 bales of leather which were loaded into the carrier’s container on the seller’s premises where the bales were actually tallied by the carrier, that the container was not the package and the 99 bales of leather were each to be treated as packages for purposes of the COGSA limitation. In Nichimen there were rolled steel sheets strapped with steel bands, some wrapped in burlap, some not, and these were each treated as a functional unit and each as a package, although a container shipment was not involved. In Kulmerland it was held that 350 cartons of adding machines shipped in a container with a bill of lading referring simply to “1 Container said to contain Machinery” were not individual packages but rather that the container was a package. The Kulmerland panel in affirming Judge Tyler’s decision referred to a “functional package unit” test or “functional economics” test saying that the first question was “whether the contents of the container could have feasibly been shipped overseas in the individual packages or cartons in which they were packed by the shipper.” This test was, however, not to be conclusive for purposes of determining what is a COGSA package, but simply was set forth as establishing the burden of proof, the court saying that where the shipper’s own packing units are functional there is a presumption that the container is not the package which must be overcome by evidence supplied by the carrier that the parties intended to treat it as such, and that contrariwise where the shipment is not a functional packing unit the burden shifts to the consignee to show by other evidence that the shipper’s units are by themselves packages. 483 F.2d at 649. The court referred to such items as custom and usage in the trade, the parties’ own characterization and other factors as bearing on the parties’ intent. While Kulmerland has been the subject of some criticism, that criticism depends to some extent on whose ox is gored. The decision has also been considered as equitable and followed by the courts in" }, { "docid": "13123574", "title": "", "text": "test which deemed the shipper’s own carton or crate, rather than the container, a presumptive “COGSA package” if the carton or crate incorporates packaging sturdy enough to withstand the rigors of break bulk carriage. If the shipper’s package meets this test, it is deemed to be what the Court called a “functional package.” If, however, the Court finds the cargo, as packaged by the shipper, unsuited to break bulk carriage, a contrary presumption obtains — that is, the container itself becomes the presumptive COGSA package. In either case the presumption can be rebutted by evidence of an intention by the contracting parties to treat as a COGSA package something other than the presumptive package. Therefore, Cameco and Royal Typewriter taken together propound a completely “neutral” formula — from a judicial standpoint— for determining whether and when a ship’s container is a COGSA package. Furthermore, under the Cameco/Royal Typewriter analysis, the intent of the parties is made the ultimate determinant in identifying the COGSA package. These characteristics of the Cameco/Royal Typewriter test are not easily reconciled with the earlier-described approach of Leather’s Best and Shinko Boeki which, at least tacitly, appear to set up a blind presumption against the carrier’s containers being COGSA packages and, significantly, make no mention of the parties’ intent as having a bearing on the COGSA package issue. One might well conclude that the Second Circuit is still in the process of refining an appropriate legal standard to resolve the limitation question. Nevertheless, the labors of the Second Circuit are most instructive, albeit inconclusive, in highlighting the practical and conceptual problems involved. III. Analysis Although this case poses a COGSA interpretive question of first impression in the Ninth Circuit, there are some relevant and illuminating remarks in Hartford Fire Insurance Co. v. Pacific Far East Lines, Inc. (1974). The specific holding in Hartford was that a 36,700 pound free-standing electrical transformer which was shipped uncrated, but attached to wooden skids, did not constitute a package within the meaning of COGSA’s $500 per package liability limitation. While this ruling does not itself advance the analysis herein, the opinion" }, { "docid": "22267253", "title": "", "text": "in this regard, obvious wisdom in the Ninth Circuit’s conclusion in Hartford that technological advancements, whether or not forseeable by the COGSA promulgators, do not warrant a distortion or artificial construction of the statutory term “package”. A ruling that these large reusable metal pieces of transport equipment qualify as COGSA packages — at least where, as here, they were carrier-owned and supplied — would amount to just such a distortion. Certainly, if the individual crates or cartons prepared by the shipper and containing his goods can rightly be considered “packages” standing by themselves, they do not suddenly lose that character upon being stowed in a carrier’s container. I would liken these containers to detachable stowage compartments of the ship. They simply serve to divide the ship’s overall cargo stowage space into smaller, more serviceable loci. Shippers’ packages are quite literally “stowed” in the containers utilizing stevedoring practices and materials analogous to those employed in traditional on board stowage. In Yeramex International v. S.S. Tendo, 1977 A.M.C. 1807 (E.D.Va.), rev’d on other grounds, 595 F.2d 943 (4 Cir. 1979), another district with many maritime cases followed Judge Beeks’ reasoning in Matsushita and similarly rejected the functional economics test. Judge Kellam held that when rolls of polyester goods are packed into cardboard cartons which are then placed in containers, the cartons and not the containers are the packages. In another decision in the District Court for the Eastern District of Virginia, Complaint of Norfolk, Baltimore & Carolina Line, Inc., supra, 478 F.Supp. at 392, Judge Clarke concluded that the functional economics test presents “too narrow a test for determining whether the containers in this case are COGSA packages”, since “[t]he implementation of Congress’ purpose cannot rest on so nebulous a factor as the durability of the shipper’s original container”. He listed twelve criteria that should be applied in determining whether the shipper’s “packages” or the containers should be regarded as the packages for purposes of § 4(5) of COGSA and held that, particularly because of the reference in the shipping documents to the container and not the contents, the containers were the" }, { "docid": "13123599", "title": "", "text": "and, therefore, were “functionally” packaged. (b) Neither Tokai nor Estrella has successfully rebutted the presumption, raised by the above finding, that the shipper’s cartons were COGSA packages each subject to the $500 limitation of 46 U.S.C. § 1304(5). In reaching this finding I gave no consideration to the legal effect, contractual or evidentiary, of the “letter of guaranty.” This is because any effect given it could only serve to reinforce my finding. In a different case, under this test, it might be necessary to decide whether such a letter, if invalid as a preference or tariff violation, might nonetheless have evidentiary value as an expression of intent. As for the bill of lading provision in paragraph 26, supra in text, it carries little weight toward establishing intent, being a unilateral, self-serving declaration by the carrier which was not negotiated by the parties and could scarcely be discerned by the unaided eye in the maze of microscopic and virtually illegible provisions on the backs of the bills of lading. See Shinko Boeki Co., Ltd. v. S.S. PIONEER MOON, 507 F.2d 342, 344-45 (2d Cir. 1974); Leather’s Best, Inc. v. S.S. MORMACLYNX, 451 F.2d 800, 804, 815-16 (2d Cir. 1971); Encyclopedia Britannica, Inc. v. S.S. HONG KONG PRODUCER, 422 F.2d 7, 14-15 (2d Cir. 1969); Simon, supra note 21, at 534-36. . 491 F.2d 960 (9th Cir. 1974) discussed in text, supra. . See notes 37-39, supra, and accompanying text. . 451 F.2d 800, 815 (2d Cir. 1971). . See DeOrchis, supra note 42. . Arguments, for example, concerning the achievement of a more desirable accommodation of interests as between shippers’ and carriers’ insurance companies are properly addressed to Congress, not the courts. See Simon, supra note 44, at 616. . See, in this regard, In Re Pacific Far East Lines, Inc., 314 F.Supp. 1339, 1350 (N.D.Cal.1970). . See Simon, supra note 21, at 515. . To me, it does not seem reasonable to treat as the “package” of certain goods — using that term as it is commonly understood — a thing whose ownership does not follow title to the goods." } ]

[ { "docid": "9448228", "title": "", "text": "a judgment of acquittal, no finding or verdict on Harshaw’s indictment has been made. Thus, technically, there is still an ongoing trial. The Supreme Court has recently ruled, however, that a midtrial dismissal instigated by the defendant is an appealable order. United States v. Scott, 437 U.S. 82, 100, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978). The grant of a mistrial due to the introduction of inadmissible evidence, for all practical purposes, has the same effect as a dismissal in ending the defendant’s trial. A liberal construction of § 3731 does not require the procedural gyrations required by the Sixth Circuit’s decision in United States v. Payner, 572 F.2d 144 (6th Cir.1978). In that case, after the Sixth Circuit dismissed the appeal for lack of jurisdiction, the government petitioned the district court to vacate its suppression order, enter a verdict of guilty, and then re-enter its suppression order. The district court complied and the Sixth Circuit then heard the government’s appeal from that sequence of orders. See United States v. Payner, 590 F.2d 206, 207 (6th Cir.1979), rev’d, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). . Tuffy was unavailable at the time of trial. . Appellant contends that the identification of Harshaw as the woman in the red Olds 98 is extremely tenuous. Appellant points out that it was dark at the time, that there is conflicting testimony from police personnel as to where the red Olds 98 was parked, and that the red Olds 98 was at least forty-five feet away from the nearest police observer, including Holifield, when the alleged transaction occurred. . Cases holding no conspiracy was proved: United States v. Brown, 584 F.2d 252 (8th Cir.1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1220, 59 L.Ed.2d 458 (1979); United States v. Holder, 560 F.2d 953 (8th Cir.1977); United States v. Stroupe, 538 F.2d 1063 (4th Cir.1976); United States v. Frol, 518 F.2d 1134 (8th Cir.1975). Cases holding conspiracy was proved: United States v. Milham, 590 F.2d 717 (8th Cir.1979); United States v. Macklin, 573 F.2d 1046 (8th Cir.), cert. denied, 439 U.S." } ]

[ { "docid": "23274640", "title": "", "text": "stated that defendants Wilson and Kelley had visited him at his Moberly residence on the morning of January 9, 1975. He stated that all the participants in the crime had come to his home at approximately 4 p. m. on January 10. He related various comings and goings of the group, including the return of Wilson from the attempt to recover the money. His testimony in this regard connected Wilson to the scheme in at least two important respects; Cason observed blood on Wilson’s pant leg at this time and Cason heard Wilson exclaim, “Let’s get out of here. Trap.” He also identified a jacket and hat which Wilson was wearing when he left to retrieve the money. When Wilson returned, according to Cason, he was not wearing the jacket or hat. A Missouri state trooper testified that the same jacket and hat were found near the trash can where the money was hidden. I. ADMISSIBILITY OF THE EXTRAJUDICIAL STATEMENTS Each defendant argues that the trial judge erred by ruling that Roberson’s testimony as to extra-judicial statements of the copartieipants was admissible pri- or to an independent showing of concert of action. We disagree. It is well settled that if a concert of action is established by independent evidence, statements made in furtherance of the unlawful association are not hearsay and are admissible. United States v. Frol, 518 F.2d 1134, 1136 (8th Cir. 1975); United States v. Sanders, 463 F.2d 1086, 1088 (8th Cir. 1972). The order of proof is within the discretion of the trial judge. Brinlee v. United States, 496 F.2d 351, 354 (8th Cir.), cert. denied, 419 U.S. 878, 95 S.Ct. 142, 42 L.Ed.2d 118 (1974). The statements may be conditionally admitted subject to being “connected up” by subsequent independent proof of concert of action. United States v. Sanders, supra, 463 F.2d at 1088; United States v. Reed, 446 F.2d 1226, 1231 (8th Cir. 1971); Fabian v. United States, 358 F.2d 187, 192 (8th Cir. 1966). The requisite showing of concert of action may be established by evidence of a likelihood of illicit association between the declarant" }, { "docid": "15762831", "title": "", "text": "not satisfied with the last purchase of LSD. Johnson said that the quality of the LSD was good but that he would pass on the complaint to his source. In addition, however, Mannie testified that he had been dealing with Johnson’s brother concerning the sale of drugs to agent Lee and that the brother had been in touch with Johnson about that sale. A conviction can properly rest on the uncorroborated testimony of an accomplice. United States v. Knight, supra, 547 F.2d at 76. Statements of a coconspirator identifying a fellow coconspirator as his source of controlled substances is in furtherance of the conspiracy and therefore admissible. United States v. Fitts, supra, 635 F.2d at 666, citing United States v. Carlson, 547 F.2d 1346, 1362 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977). Where there is sufficient evidence to implicate a defendant as a participant in each transaction, that defendant need not be present on the occasions when controlled substances are actually purchased by an undercover agent, in order to be convicted on charges of distribution. United States v. Martinez, 573 F.2d 529, 532 (8th Cir. 1978). Johnson was identified by Mannie as the source of LSD for both sales. Such evidence of participation in each sale, without evidence of physical presence at either transaction, was legally sufficient to sustain his convictions. Moreover, Johnson’s own statements to agents Lee and Nicks revealed that he was an active, knowledgeable participant in the second sale. As to count III, apparently, Johnson is arguing that out-of-court statements by coconspirators were not admissible to prove the conspiracy because the court did not rule on the admissibility of hearsay evidence at the close of the defendant’s case, but rather waited until after all evidence had been presented. Without such hearsay in the record, he asserts, the court should have directed a verdict of acquittal. United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978), held prospectively that the court must make an on-the-record determination of the admissibility of coconspirator’s statements under Fed.R.Evid. 801(d)(2)(E). Its guidelines state that" }, { "docid": "7583067", "title": "", "text": "that Singer was conspiring with Renick on January 14 or 15. An out-of-court declaration of a co-conspirator is admissible against a defendant if (1) a conspiracy existed; (2) the defendant and the declarant were members of the conspiracy; and (3) the declaration was made during the course and in furtherance of the conspiracy. United States v. Bell, 573 F.2d 1040, 1043 (8th Cir.1978); Fed.R.Evid. 801(d)(2)(E). Where the de fendant asserts that no conspiracy existed at the time the challenged statements were made, the government must show by a “preponderance of independent evidence” that a conspiracy existed. United States v. Piatt, 679 F.2d 1228, 1232 (8th Cir.1982). This standard provides that a co-conspirator’s statements are admissible “if on the independent evidence the district court is satisfied that it is more likely than not that the statement was made during the course ... of an illegal association to which the declarant and the defendant were parties.” Bell, 573 F.2d at 1044. While the evidence must be independent, i.e., exclusive of the challenged statements, United States v. Baykowski, 615 F.2d 767, 771 n. 3 (8th Cir.1980), it may be circumstantial, United States v. Jankowski, 713 F.2d 394, 396 (8th Cir.1983). The district court’s determination will not be reversed unless clearly erroneous. United States v. Harshaw, 705 F.2d 317, 320 (8th Cir.1983). Following the procedure outlined in Bell, supra, the district court admitted Renick’s statements conditionally. At the conclusion of the evidence, it ruled that the statements were admissible, satisfied that “[o]n independent evidence ... it is more likely than not that the statements were made during the course and in furtherance of a conspiracy, to which the declarants, who are defendants in this case, were parties.” It is without dispute that Singer’s presence at the riverfront meeting and his statements referring to the cocaine and the method of concluding the transaction indicate he was conspiring with Renick as of January 16. The issue is whether the district court was clearly erroneous in its conclusion that a preponderance of the evidence indicated that the conspiracy existed two days earlier on January 14. The evidence" }, { "docid": "17710853", "title": "", "text": "testimony on the theory that, although hearsay, it related statements by a coconspirator made in furtherance of the conspiracy and thus is admissible under Federal Rule of Evidence 801(d)(2)(E). Appellant disputes this ruling, suggesting that the requisite “independent proof” of the conspiracy did not exist and therefore that admission of the statements was wrong. The rule for admissibility of such evidence requires that the Government prove the existence of the conspiracy by evidence that is independent of the ques tioned statement. United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Frol, 518 F.2d 1134, 1136 (8th Cir. 1975); United States v. Rich, 518 F.2d 980, 984 (8th Cir. 1975). The independent evidence must establish that (1) a conspiracy existed, (2) the declarant and the defendant were members of the conspiracy, and (3) the statements were made during and in furtherance of the conspiracy. United States v. Rich, supra, 518 F.2d at 984. In United States v. Scholle, 553 F.2d 1109 (8th Cir. 1977), we discussed the necessary quantum of such independent evidence. [T]he standard for the admissibility of co-conspirator statements requires the showing of a likelihood of illicit association between the declarant and the defendant. The trial judge determining admissibility preliminarily has wide discretion and must be satisfied only that there is independent evidence, credible and sufficient to support a finding of a joint undertaking. The independent evidence of illicit association may be completely circumstantial, or may consist of the conspirators’ own conduct and admissions. [Id. at 1117.] The trial court has discretion over the order of proof of the conspiracy. We stated in United States v. Jackson, 549 F.2d 517, 533 (8th Cir. 1977) that: There is no requirement that the independent evidence of conspiracy be introduced prior to the introduction of the co-conspirator’s statement. The order of proof is a matter left to the discretion of the trial court. Accordingly, the co-conspirator’s statement may be conditionally admitted subject to being “connected up” subsequently by independent proof of conspiracy, which may be totally circumstantial. [Citations omitted.] In this case, ample" }, { "docid": "13708972", "title": "", "text": "joint enterprise involving illicit drug traffic other than the conversations, and United States v. Holder, 560 F.2d 953, 956-58 (8th Cir. 1977), where the court held that there was no sufficient independent evidence of a conspiracy. The factual situations in Frol and Holder differ greatly from the substantial independent evidence of conspiracy present in this case. Defendant also argues that testimony of West concerning statements made by Piatt were improperly admitted. Such statements of a defendant are not hearsay under Rule 801(d)(2)(A) of the Federal Rules of Evidence, which provides that a statement is not hearsay if “[t]he statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity....” United States v. Smith, 600 F.2d 149, 152 (8th Cir. 1979); United States v. Nelson, 603 F.2d 42, 45 n.3 (8th Cir. 1979). Admissibility of such statements is not dependent on proof of an ongoing conspiracy. United States v. Smith, supra at 152. III. Defendant contends that the district court erred and abused its discretion in denying his motion for severance. In pretrial motions, defendant claimed that certain coconspirators would present exculpatory statements and would give such testimony only at a separate trial. No other record was made. This court has ruled that there must be independent support in the record for such an assertion. United States v. Graham, 548 F.2d 1302, 1311-12 (8th Cir. 1977). . [7] Defendant has a heavy burden of demonstrating that the trial court abused its discretion. United States v. Anthony, 565 F.2d 533, 538 (8th Cir. 1977). Defendant primarily relies on United States v. Seifert, 648 F.2d 557 (8th Cir. 1980), and United States v. Vigil, 561 F.2d 1316 (9th Cir. 1977). In Seifert defendant’s counsel made an offer of proof specifically outlining the expected testimony of the coconspirator, Ehrlich, that would exculpate defendant, and the offer of proof was supported by Ehrlich’s affidavit. In Vigil an affidavit of defendant’s counsel filed with the motion to sever specified that the coconspirator Vigil would exculpate Baca, and at trial, when told that Vigil would not testify, defendant’s" }, { "docid": "2147467", "title": "", "text": "and Eaddy entered the house. After almost an hour, they left in the Mercedes, and Dockins’ yellow Cadillac followed. At one point, the cars under surveillance pulled onto a dirt road and out of sight. After five minutes, they returned to the main road, proceeded to the Holiday Inn, and parked in the motel parking lot. Todd and the agent met in the lounge and then went to Room 112 where the cocaine sale took place. While Todd and Sprague were in Room 112, Eaddy and a person later identified as Dockins were observed in conversation in the motel lobby; during the conversation, Eaddy gestured in the direction of Room 112. After the sale was completed, Todd was arrested in the room and Eaddy was arrested in the lounge. The agents could not find Dockins, although his car was still parked in the Holiday Inn lot. He surrendered the next day. On appeal, Dockins primarily contests the admissibility of Todd’s statements that his supplier was a “lounge owner.” Dockins argues that these were inadmissible hearsay statements because there was insufficient independent evidence connecting him to the conspiracy. Rule 801(d)(2)(E) of the Federal Rules of Evidence permits co-conspirators’ out-of-court statements to be admitted against a defendant at trial if the statements were made “during the course of and in furtherance of the conspiracy.” Id. However, the admissibility of such statements is conditioned upon the existence of substantial evidence of the conspiracy other than the statement itself. United States v. Stroupe, 538 F.2d 1063, 1065 (4th Cir. 1976). Dockins argues that his case is factually similar to Stroupe, where this court ruled that the independent evidence of a conspiracy was insufficient to warrant the admission of a co-conspirator’s out-of-court statement. In Stroupe, the government introduced several out-of-court statements by Wright, the alleged co-conspirator, which identified Stroupe as the drug supplier. As independent evidence to prove conspiracy, the government showed that an undercover agent and Wright had stopped by Stroupe’s trailer, supposedly to get the drugs. Wright went in for a couple of minutes, and came back out with Stroupe and his girlfriend." }, { "docid": "14503363", "title": "", "text": "out-of-court declaration by an alleged coconspirator. Appellant notes that under Bell “an out-of-court statement is not hearsay and is admissible if on the independent evidence the district court is satisfied that it is more likely than not that the statement was made during the course and in furtherance of an illegal association to which the declarant and the defendant were parties.” Id. at 1044. In addition, appellant points out that Bell describes certain procedural steps which should be utilized in determining the admissibility of a coconspirator’s statement. Baykowski contends that the district court incorrectly applied both the procedural guidelines and substantive test enunciated in Bell. We do not agree. We turn first to appellant’s “substantive” argument that the government did not adduce sufficient independent evidence that defendant was a member of a conspiracy to allow the admission of the out-of-court statement by Linda Fay Owens that her husband’s partners were Paul and Bill. Appellant asserts that the only independent evidence that the government offered showing Baykowski’s involvement in the conspiracy were the identification of the two hotel clerks from the Ramada Inn in Jackson, Mississippi and the testimony of FBI agents as to Baykowski’s activities on the date of his arrest. Noting that the statement of Linda Fay Owens cannot be considered in determining the admissibility of a coconspirator’s out-of-court statement, appellant complains that the independent evidence was insufficient to show by a preponderance his participation in the conspiracy. We are unpersuaded by appellant’s argument and believe that substantial independent evidence was introduced by the government proving by a preponderance of the evidence defendant’s participation in the conspiracy. United States v. Milham, 590 F.2d 717, 723 (8th Cir. 1979). Most convincing is the fact that defendant Baykowski was arrested on December 14 while assisting conspirator William Politte and at the time of his arrest had on his person a key which fit the van from which several stolen items from Mississippi were recovered. Furthermore, employees at the Ramada Inn in Jackson, Mississippi testified that they had seen Baykowski at the Inn during the fall of 1977. We thus conclude that" }, { "docid": "8648755", "title": "", "text": "shortly after Juno delivered two ounces of cocaine to Thompson. Resnick arrived at home driving the same car about twenty minutes later, the approximate driving time from the Basin Bar. Resnick bent low in the car before getting out. After Resnick’s arrest, the $5,400 in recorded funds that Thompson gave Juno for the cocaine purchase were found under the dashboard. Finally, without being told of Juno or Juno’s occupation, Resnick commented to police, “I suppose they arrested the bartender too.” This case is distinguishable from United States v. Frol, 518 F.2d 1134 (8th Cir.1975), which involved only one drug transaction and where the government money was never recovered. Rather, the circumstances here are consistent with those in United States v. Williams, 604 F.2d 1102 (8th Cir. 1979), and United States v. Macklin, 573 F.2d 1046 (8th Cir.), cert, denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157 (1978), where we held that repeated meetings between the defendant and the person actually making the sales to the police were sufficient evidence of a conspiracy for purposes of admitting coconspirators’ hearsay statements. The evidence linked Resnick to both the April 19 and May 3 transactions. The present case is also distinguishable from United States v. Holder, 560 F.2d 953 (8th Cir.1977), where there was no evidence that the defendant ever met with the sellers and no transaction involving him was ever observed. Here Resnick was observed meeting alone with Juno. Resnick was not merely present or associated with Juno. See United States v. Harshaw, 705 F.2d 317, 321 (8th Cir.1983). Moreover, the fact that some of the independent evidence postdated Juno’s statements is of no consequence “so long as its natural tendency, when introduced, was to show the concert of action to have been existing at the time of the statement.” Panas, 738 F.2d at 283 (quoting United States v. Everidge, 488 F.2d 1, 3 (1st Cir. 1973)). The evidence revealed that Juno made the statements while arranging future sales and while completing present sales. We conclude that the “natural tendency” of the independent evidence linking Resnick to the sales of" }, { "docid": "287127", "title": "", "text": "lot for nearly two hours with his father and brother the same evening that a Buick Regal was stolen from the lot. “ ‘Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt a connection of the defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy.’ United States v. Dunn, 564 F.2d 348, 357 (9th Cir.1977).” United States v. Laughman, 618 F.2d 1067, 1076 (4th Cir.) (emphasis in original), cert, de nied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). Because this evidence was alone enough to convict Michael of conspiracy, his father’s out-of-court statements concerning his participation in actual thefts were admissible under Federal Rule of Evidence 801(d)(2)(E), which provides that statements of a co-conspirator made during the course and in furtherance of the conspiracy are not hearsay. See generally United States v. Stroupe, 538 F.2d 1063, 1065-66 (4th Cir.1976). We therefore affirm Michael’s conspiracy conviction. We next address Michael’s contention that the evidence did not support his conviction for the three substantive offenses. Michael was charged in three separate counts with transporting or aiding and abetting the interstate transportation of three stolen vehicles, namely: the Datsun pickup, from North Carolina to South Carolina; the Pontiac Trans Am, from South Carolina to Michigan; and the Buick Regal, from South Carolina to Michigan. To establish the section 2312 offense charged in the indictment, the government had to prove that (1) there was a stolen vehicle; (2) the defendant knew that the vehicle was stolen; and (3) the defendant transported the vehicle in interstate commerce. United States v. Martinez, 694 F.2d 71, 72 (5th Cir.1982); United States v. Johnson, 526 F.2d 600, 601 (8th Cir.1975) (per curiam). Mindful that our role is limited to determining whether the record contains “substantial evidence” to support each of the elements of the offense charged, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we nonetheless conclude that the government did not prove its case against Michael insofar as" }, { "docid": "7476529", "title": "", "text": "to establish that Julian and Gresko were involved in the conspiracy to bribe Altomare and the recorded statements of Altomare and Gus Karas could be admitted under the co-conspirator exception. In United States v. McCormick, 565 F.2d 286, 289 (4th Cir. 1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 747, 54 L.Ed.2d 769 (1978), this court stated the controlling principle: “there must be independent evidence of his participation in and the conspiracy itself to permit admission into evidence against him of declarations made by co-conspirators.” Independent evidence is evidence other than the alleged co-conspirator statements themselves. “Otherwise hearsay would lift itself by its own bootstraps to the level of competent evidence.” Glasser v. United States, 315 U.S. 60, 74-75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). See also United States v. Stroupe, 538 F.2d 1063, 1065 (4th Cir. 1976). Although the independent evidence need not establish the participation of the defendant in the conspiracy beyond a reasonable doubt, United States v. Jones, 542 F.2d 186, cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 375 (1976), it must be sufficient at least to take the question to the jury. United States v. Stroupe, supra, 538 F.2d at 1065. Absent such independent evidence, the proffered statements are inadmissible hearsay. We have no difficulty finding there was sufficient independent evidence connecting appellant Julian with the conspiracy to justify admitting the recorded co-conspirator statements against him. Sheriff Donell testified Gus Karas paid him $1,500 on three occasions in return for his and Altomare’s agreement not to close down the five Weirton gambling establishments. The parties stipulated that Karas would have testified he received part of the bribe money from appellant Julian. Such testimony would have been based on Karas’ personal knowledge and admissible as non-hearsay evidence of Julian’s involvement. This independent evidence established a predicate for admitting the out of court co-conspirator statements against Julian. Gresko, however, is another matter. Although Sheriff Donell’s testimony alone was sufficient to make out a prima facie case of a conspiracy to bribe Altomare, the Government presented no independent evidence to show Gresko was involved." }, { "docid": "13708971", "title": "", "text": "the statements were admissible. We are unable to find that the district court erred in making this finding. The following independent evidence of conspiracy supports the district court’s finding: Piatt’s actions in obtaining the Grand Prix from West and driving to St. Louis; the bundle in the Grand Prix’s back seat covered by a sheet when Piatt left Florida; telephone toll calls between Piatt’s residence and that of Tori-an immediately before Piatt’s departure from Florida; a telephone toll call from the Holliday Inn, Mount Vernon, Illinois, to Torian’s residence billed to Piatt’s home phone; Piatt’s meeting with Torian and Sever in the Patio Bar witnessed by Joan Roberds; Piatt’s admissions concerning the delivery of marijuana; the marijuana at Sever’s house originally taken from the Grand Prix; and the marijuana found in the Grand Prix, including the marijuana partially covered by a sheet in the back seat. Defendant relies upon United States v. Frol, 518 F.2d 1134, 1136-37 (8th Cir. 1975), in which the court held that there was nothing in the record to indicate a joint enterprise involving illicit drug traffic other than the conversations, and United States v. Holder, 560 F.2d 953, 956-58 (8th Cir. 1977), where the court held that there was no sufficient independent evidence of a conspiracy. The factual situations in Frol and Holder differ greatly from the substantial independent evidence of conspiracy present in this case. Defendant also argues that testimony of West concerning statements made by Piatt were improperly admitted. Such statements of a defendant are not hearsay under Rule 801(d)(2)(A) of the Federal Rules of Evidence, which provides that a statement is not hearsay if “[t]he statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity....” United States v. Smith, 600 F.2d 149, 152 (8th Cir. 1979); United States v. Nelson, 603 F.2d 42, 45 n.3 (8th Cir. 1979). Admissibility of such statements is not dependent on proof of an ongoing conspiracy. United States v. Smith, supra at 152. III. Defendant contends that the district court erred and abused its discretion in denying" }, { "docid": "8648756", "title": "", "text": "purposes of admitting coconspirators’ hearsay statements. The evidence linked Resnick to both the April 19 and May 3 transactions. The present case is also distinguishable from United States v. Holder, 560 F.2d 953 (8th Cir.1977), where there was no evidence that the defendant ever met with the sellers and no transaction involving him was ever observed. Here Resnick was observed meeting alone with Juno. Resnick was not merely present or associated with Juno. See United States v. Harshaw, 705 F.2d 317, 321 (8th Cir.1983). Moreover, the fact that some of the independent evidence postdated Juno’s statements is of no consequence “so long as its natural tendency, when introduced, was to show the concert of action to have been existing at the time of the statement.” Panas, 738 F.2d at 283 (quoting United States v. Everidge, 488 F.2d 1, 3 (1st Cir. 1973)). The evidence revealed that Juno made the statements while arranging future sales and while completing present sales. We conclude that the “natural tendency” of the independent evidence linking Resnick to the sales of April 19 and May 3 makes it more likely than not that an ongoing conspiracy existed when Juno’s statements were made. It is clear that Juno’s statements were made during the course of and in furtherance of a conspiracy under Rule 801(d)(2)(E). Because there was no objection to the admission of Juno’s statements, the procedural steps established in Bell, 573 F.2d at 1044-45, were not required. See also Macklin, 573 F.2d at 1049. The only issue is whether there was .plain error in admitting the evidence. Because compelling independent evidence demonstrates that it was more likely than not that Resnick was a participant in an ongoing conspiracy with Juno, we conclude that there was no plain error in admitting this evidence. Hence these statements may be considered in our review of the sufficiency of the evidence to support appellants’ convictions. II. In reviewing the sufficiency of the evidence supporting appellants’ convictions, we view the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences that may logically" }, { "docid": "23103862", "title": "", "text": "the cocaine purchased from Barrie Watson. We turn now to the various contentions of defendants Scholle and Needham. I The defendants initially contend that their convictions should be reversed because they were based largely upon the inadmissible testimony of accomplices, or even accepting the accomplice testimony, that the evidence was insufficient to sustain verdicts of guilty. Needham claims that independent evidence of a conspiracy to distribute cocaine was not adequate to support the admission of testimony as to the extrajudicial statements implicating him made by co-defendant Scholle. Scholle complains that the accomplice testimony was uncorroborated, and argues its insufficiency in proving his participation in conspiracies to import and distribute cocaine. The general rule is that statements made by a co-conspirator in furtherance of the unlawful association are properly admissible against not only the declarant but also against his co-conspirators. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Graham, 548 F.2d 1302 (8th Cir. 1977); United States v. Frol, 518 F.2d 1134, 1136 (8th Cir. 1975); United States v. Rich, 518 F.2d 980, 984 (8th Cir. 1975); Fed.R.Evid. 801(d)(2)(E). For such statements to be admitted, there must be substantial independent evidence that a conspiracy existed. United States v. Nixon, supra. As set forth by this court in United States v. Sanders, 463 F.2d 1086, 1088 (8th Cir. 1972), the standard for the admissibility of co-conspirator statements requires the showing of a likelihood of illicit association between the declarant and the defendant. The trial judge determining admissibility preliminarily has wide discretion and must be satisfied only that there is independent evidence, credible and sufficient to support a finding of a joint undertaking. The independent evidence of illicit association may be completely circumstantial, or may consist of the conspirators’ own conduct and admissions. United States v. Overshon, 494 F.2d 894, 899 (8th Cir. 1974). In the case before us, Needham protests the admission of hearsay testimony including a) that of Thuftedal and Kaufman to the effect that Scholle had told them he distributed cocaine to Needham; b) Watson’s statement that Scholle had thanked him" }, { "docid": "22298920", "title": "", "text": "other $600 from the sale was found on Jackson. The $1,000/$600 split of the proceeds between Muhammad and Jackson approximated the 60/40 supplier-seller split, discussed below, used by James Jackson when his brother sold narcotics for him, except that in this instance Muhammad received the 60% supplier’s share. From the basis of circumstantial and direct evidence presented, the jury could reasonably infer that Muhammad participated in the July 23, 1975, sale of heroin to Agent Vaughan. The jury was presented with sufficient evidence to have convinced it beyond a reasonable doubt that Muhammad was guilty of these two substantive narcotics offenses, which were also overt acts in furtherance of the conspiracy to distribute narcotics. The Government’s evidence of Muhammad’s participation in the conspiracy was not limited to proof of these two acts, however. There was also abundant evidence of frequent contacts between Muhammad and Jackson during negotiations by Jackson for sales of narcotics and preceding and following these sales. The details of these contacts, which were not limited to June 5 and July 23, have been set forth previously and need not be repeated here. Finally, a co-conspirator’s statement implicating Muhammad in the conspiracy was introduced into evidence by the Government. Anderson Jackson, the brother of defendant James Jackson, testified that James, for whom he was distributing heroin, had told him that Muhammad was involved in selling drugs. The rule is well established that a statement by a co-conspirator made during the course and in furtherance of a conspiracy is not hearsay and may be admitted against the declarant and his co-conspirators so long as a conspiracy is established by independent evidence. United States v. Kelley, 526 F.2d 615, 618 (8th Cir. 1975), cert. denied, 424 U.S. 971, 96 S.Ct. 1471, 47 L.Ed.2d 739 (1976); United States v. Frol, 518 F.2d 1134, 1136 (8th Cir. 1975). There is no requirement that the independent evidence of conspiracy be introduced prior to the introduction of the co-conspirator’s statement. The order of proof is a matter left to the discretion of the trial court. United States v. Kelley, supra; Brinlee v. United States," }, { "docid": "945242", "title": "", "text": "for early parole. For many years, we have applied the concurrent sentence rule in the interest of judicial economy with the reservation that it not be followed where it might expose the defendant to substantial risk of adverse consequences. Sanders v. United States, supra at 193; United States v. Belt, supra at 875-876. Until recently, we have lacked evidence that applying the concurrent sentence rule would influence parole status decisions. It now appears that the United States Board of Parole’s regulations for determining parole eligibility necessitate a reassessment of that doctrine. Because we have identified the possibility of adverse consequences, we will consider the validity of Holder’s evidentiary claim. Turning then to Holder’s hearsay-related argument, the general rule is that statements made by a coconspirator in furtherance of the unlawful association are not hearsay and are properly admissible against both the declarant and his coconspirators. United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Scholle, 553 F.2d 1109 (8th Cir. 1977); United States v. Frol, 518 F.2d 1134 (8th Cir. 1975); United States v. Rich, 518 F.2d 980 (8th Cir. 1975); United States v. Buckhanon, 505 F.2d 1079 (8th Cir. 1974); Fed.R.Evid. 801(d)(2)(E). In determining whether to admit hearsay evidence, the trial judge must be satisfied that there is substantial evidence, independent of the challenged hearsay statements, establishing the existence of a conspiracy between the declarant and the defendant. United States v. Frol, supra at 1136; United States v. Rich, supra at 984. “The offense of conspiracy consists of an agreement between conspirators to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy.” United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied, sub nom. Ennis v. United States, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974), quoting from United States v. Skillman, 442 F.2d 542, 547 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971). See United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed." }, { "docid": "7583066", "title": "", "text": "be done” and, when O’Dea persisted in asking for a sample, by stating “we really can’t get it out now” because “it’s hidden deep in the car.” A search of the car in which Singer and Renick were traveling revealed the cocaine and a Hertz rental agreement bearing a credit card imprint with the name of Alan Singer. In light of this strong evidence against Singer, we do not believe there was an “appreciable chance” that he would not have been convicted had he been granted a separate trial. II. Hearsay Singer next argues that hearsay statements were improperly received into evidence against him. Specifically, he points to two statements made by Renick to O’Dea during unrecorded telephone conversations. The first is Renick’s January 14 statement that “he had the accountant with him.” The second is Renick’s January 15 statement that “they had been driving all day” and “they were in town.” Singer claims that these statements are not admissible as the declarations of a coconspirator under Fed.R.Evid. 801(d)(2)(E) because there existed no independent evidence that Singer was conspiring with Renick on January 14 or 15. An out-of-court declaration of a co-conspirator is admissible against a defendant if (1) a conspiracy existed; (2) the defendant and the declarant were members of the conspiracy; and (3) the declaration was made during the course and in furtherance of the conspiracy. United States v. Bell, 573 F.2d 1040, 1043 (8th Cir.1978); Fed.R.Evid. 801(d)(2)(E). Where the de fendant asserts that no conspiracy existed at the time the challenged statements were made, the government must show by a “preponderance of independent evidence” that a conspiracy existed. United States v. Piatt, 679 F.2d 1228, 1232 (8th Cir.1982). This standard provides that a co-conspirator’s statements are admissible “if on the independent evidence the district court is satisfied that it is more likely than not that the statement was made during the course ... of an illegal association to which the declarant and the defendant were parties.” Bell, 573 F.2d at 1044. While the evidence must be independent, i.e., exclusive of the challenged statements, United States v. Baykowski," }, { "docid": "7583069", "title": "", "text": "shows that Singer was arrested with Renick in a Buick Skylark. A Hertz rental agreement dated January 14 was found in the glove compartment. While Singer correctly asserts that the signature “Alan J. Singer” written on the agreement was not verified at trial, the agreement has the imprint of a credit card belonging to Alan J. Singer. The agreement also bears notations concerning the details of a driver’s license and shows that additional identification in the form of an Eastern Ionosphere Card was presented to the leasing agent. Furthermore, the envelope containing the agreement indicates a reservation in the name of Singer. Finally, the agreement, executed in Detroit, lists the vehicle leased as a Buick Skylark with Michigan plates. Surveilling officers spotted Renick and Singer in a car matching this description two days later on the morning of January 16 in St. Louis. The district court in admitting Renick’s statements did not specifically catalog the above evidence. However, the Hertz agreement is evidence that Singer was in Detroit on January 14. He was arrested two days later in St. Louis with the cocaine in a ear matching the description of that leased in his name in Detroit. The district court could also properly consider the time needed to drive from Detroit to St. Louis. In light of this evidence, we cannot conclude that the district court was clearly erroneous in its finding that Renick and Singer were conspiring as of January 14, the date on which the car was leased. Singer cites United States v. Holder, 560 F.2d 953 (8th Cir.1977), and United States v. Frol, 518 F.2d 1134 (8th Cir.1975), in support of his claim that the independent evidence was insufficient to implicate him in a conspiracy as of January 14. These two cases do not lend support to Singer’s position. As we stated in Harshaw: Many of the cited cases [including Holder and Frol ] which found no conspiracy state that mere presence of a defendant at the scene of the crime or mere association with members of a criminal conspiracy is not sufficient to prove a conspiracy." }, { "docid": "15557338", "title": "", "text": "L.Ed.2d 149 (1977); United States v. Hassell, 547 F.2d 1048, 1052 (8th Cir.), cert. denied, 430 U.S. 919, 97 S.Ct. 1338, 51 L.Ed.2d 599 (1977). The defendant argues that under our holding in United States v. Frol, 518 F.2d 1134 (8th Cir. 1975), the evidence in this case should be considered insufficient. However, the same distinguishing features exist here that were present in United States v. Carlson, supra. In that case the court stated: Frol is factually distinguishable from the present case. In Frol, a prosecution for possessing heroin with intent to deliver, the defendant was identified as a source of heroin and was allegedly the driver of an automobile from which a supply of heroin was secured. Because of inadequate surveillance, the court stated that the jury could only speculate that the defendant was in that particular automobile, 518 F.2d at 1137, and there was no independent evidence showing that the defendant was engaged in a joint venture to distribute heroin. In this case, the jury was apprised of not one, but three, transactions from which it could have concluded that Carlson was involved in the distribution of cocaine. There was no breakdown in surveillance similar to that in Frol since Carlson was identified and evidence of his activities was placed before the jury. The circumstantial evidence showing Carlson’s participation in the conspiracy is stronger than that in Frol. 547 F.2d at 1361 (citations omitted). We find that there was sufficient independent evidence to warrant the admission of Carol Davidson’s statements implicating “Carmell” in the drug transactions under Rule 801(d)(2)(E). Furthermore, the evidence, including those statements, taken in the light most favorable to the government, supports the jury’s verdict of guilty on the conspiracy and distribution charges. See United States v. Carlson, supra at 1361. See also United States v. Collins, supra at 247; United States v. Hassell, supra at 1052. The judgment of conviction is affirmed. . Although the defendant does not specifically challenge his conviction on the three substantive distribution counts, we deem his allegations in regard to the sufficiency of the evidence of conspiracy as applicable" }, { "docid": "7583070", "title": "", "text": "days later in St. Louis with the cocaine in a ear matching the description of that leased in his name in Detroit. The district court could also properly consider the time needed to drive from Detroit to St. Louis. In light of this evidence, we cannot conclude that the district court was clearly erroneous in its finding that Renick and Singer were conspiring as of January 14, the date on which the car was leased. Singer cites United States v. Holder, 560 F.2d 953 (8th Cir.1977), and United States v. Frol, 518 F.2d 1134 (8th Cir.1975), in support of his claim that the independent evidence was insufficient to implicate him in a conspiracy as of January 14. These two cases do not lend support to Singer’s position. As we stated in Harshaw: Many of the cited cases [including Holder and Frol ] which found no conspiracy state that mere presence of a defendant at the scene of the crime or mere association with members of a criminal conspiracy is not sufficient to prove a conspiracy. In all but one of the cited cases that found a conspiracy there was proof beyond mere presence at a series of meetings before the drug sale. Often the additional proof is that the defendant was arrested with marked money or drugs. 705 F.2d at 321 (emphasis added). In this case, Singer was arrested with the pound of cocaine. Furthermore, the evidence linked him to the car containing the drugs as of January 14. Singer thus cannot claim that the evidence establishes only his mere presence at the crime scene or mere association with its perpetrator, and therefore our decisions in Holder and Frol, supra, are inapplicable. III. Prosecutorial Comment Both Renick and Singer argue that the United States Attorney impermissibly commented on their failure to testify by stating that O’Dea’s testimony was “uncontradicted,” thereby violating their fifth amendment right against self-incrimination. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The challenged portions of the United States Attorney’s closing argument are as follows: Now, ladies and gentlemen, I suspect—" }, { "docid": "2147468", "title": "", "text": "statements because there was insufficient independent evidence connecting him to the conspiracy. Rule 801(d)(2)(E) of the Federal Rules of Evidence permits co-conspirators’ out-of-court statements to be admitted against a defendant at trial if the statements were made “during the course of and in furtherance of the conspiracy.” Id. However, the admissibility of such statements is conditioned upon the existence of substantial evidence of the conspiracy other than the statement itself. United States v. Stroupe, 538 F.2d 1063, 1065 (4th Cir. 1976). Dockins argues that his case is factually similar to Stroupe, where this court ruled that the independent evidence of a conspiracy was insufficient to warrant the admission of a co-conspirator’s out-of-court statement. In Stroupe, the government introduced several out-of-court statements by Wright, the alleged co-conspirator, which identified Stroupe as the drug supplier. As independent evidence to prove conspiracy, the government showed that an undercover agent and Wright had stopped by Stroupe’s trailer, supposedly to get the drugs. Wright went in for a couple of minutes, and came back out with Stroupe and his girlfriend. Stroupe waved to Wright and the agent as they drove off. Upon these facts, the Stroupe court ruled that Stroupe had not been sufficiently linked to the conspiracy to justify admitting hearsay testimony by his alleged co-conspirators. We find this case factually distinguishable from Stroupe. Todd and Eaddy were in Dockins’ house for almost an hour, far more time than the short visit in Stroupe. Further, Stroupe was only seen briefly at his trailer, while Dockins was nearby throughout the transaction in this case. When Todd and Eaddy left Dockins’ house, his car followed them, pulled off a dirt road behind them, and arrived with them at the Holiday Inn. During the actual sale, Dockins was at the Holiday Inn, conversed with Eaddy, and had his attention directed to the general vicinity of the room where the sale was taking place. On these facts, we find no error in the district court’s conclusion that there was substantial independent evidence to prove Dockins’ role as a co-conspirator. Therefore, his co-conspirator’s statements are admissible against him. We" } ]

[ { "docid": "56655", "title": "", "text": "became obvious that Monsanto understood that the takings claim continued to be based on the Louisiana Constitution. In its motion for judgment on the pleadings, Monsanto stated: “The plaintiffs also assert that Monsanto’s use of injection wells constitutes a taking by a private citizen in violation of Article I Section 4 of the Louisiana Constitution.” Rl-250. In their response, Appellants failed to clarify that, as they now allege, their claim was actually brought under both the Constitutions of the United States and of Louisiana. Rather, Appellants asserted that they met the “elements of expropriation” by again citing only the Louisiana Constitution. Rl-217. Similarly, Appellants failed to invoke the federal Takings Clause in opposition to Monsanto’s motion for summary judgment. Because the Appellants were attempting to relitigate their takings claim on a new basis, Appellants’ motion was properly denied. II. Summary Judgment Order This Court reviews grants of summary judgment de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Atkins v. Hibernia Corp., 182 F.3d 320, 323 (5th Cir.1999). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When reviewing the record upon which the moving party’s motion for summary judgment is based, the court must draw all inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We conclude that the district court’s grant of summary judgment on Appellants’ state takings claim was proper. In its order granting partial summary judgment in favor of Monsanto, the district court ruled that as a matter of law Monsanto cannot be liable under Louisiana law “because it is not a private entity authorized by Louisiana law to expropriate private property for a public and necessary purpose.” R4-820. The district court reasoned that Monsanto is not one of" } ]

[ { "docid": "23103244", "title": "", "text": "liberty interests without due process of law. On October 12, 2000, the defendants made an offer of judgment pursuant to Federal Rule of Civil Procedure 68. Wilkes accepted the Rule 68 offer on October 16, 2000, and judgment was entered against defendants on October 31, 2000. A satisfaction of judgment was filed by Wilkes on November 9, 2000. The EEOC issued Wilkes a right-to-sue letter on February 8, 2001. In April 2001, she filed the present action against the Wyoming DOE, alleging violations of Title VII and the Wyoming Fair Employment Practice Act. In June 2001, the Wyoming DOE moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing Wilkes’ second action was barred by claim preclusion. Because the district court considered matters outside of the pleadings, it converted the motion to one for summary judgment and granted summary judgment in favor of Wyoming DOE on the basis of claim preclusion. II. Wilkes contends the district court erred in granting summary judgment in favor of the Wyoming DOE on the basis of claim preclusion. Specifically, she argues that since she had not yet received a right-to-sue letter from the EEOC, she was statutorily prohibited from raising her Title VII claims in her first lawsuit and, therefore, should not be barred from raising those claims in a subsequent lawsuit. “In reviewing a grant or denial of summary judgment, we apply the same standard applied by the district court under Federal Rule of Civil Procedure 56(c).” King v. Union Oil Co., 117 F.3d 443, 444-45 (10th Cir.1997). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “Whether the doctrine of res judicata applies to the case before us is a question of law which we review under the de novo standard.” Satsky v. Paramount Comm., Inc., 7 F.3d 1464, 1467-68 (10th Cir.1993) (internal citations omitted); see King, 117 F.3d at 445 (stating “[wjhere the facts are not in dispute, this court must determine de novo" }, { "docid": "22261444", "title": "", "text": "year in regard to [her] classroom reassignment and personal life.” J.A. at 183. Finally, the evaluation implied that a contract renewal would be forthcoming for the following year, concluding: “Your class of 2nd grade students is well managed and respectful. I would expect continued growth for the 1996-97 school year.” J.A. at 183. On October 11,1996, Cline filed a charge of discrimination with the Equal Employment Opportunity Commission. The EEOC issued a Notice of Right to Sue, and on June 17, 1997, Cline filed her complaint in the district court claiming illegal sex and pregnancy discrimination under Title VII, 42 U.S.C. § 2000e et seq., and Chapter 4112 of the Ohio Revised Code. She also brought claims for breach of contract and promissory estoppel. On January 30, 1998, defendants filed their Motion for Summary Judgment. Finding that Cline had failed to make out a prima facie case of discrimination, the court granted summary judgment on April 3, 1998. This timely appeal followed. II. We review de novo a district court’s grant of summary judgment, using the same Rule 56(c) standard as the district court. See Terry Barr Sales Agency, Inc. v. All-Lock Co., Inc., 96 F.3d 174, 178 (6th Cir.1996). Under that standard, summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In deciding a motion for summary judgment, we assess the factual evidence and draw all reasonable inferences in favor of the non-moving party. See National Enterprises, Inc. v. Smith, 114 F.3d 561, 563 (6th Cir.1997). Merely alleging the existence of a factual dispute is insufficient to defeat a summary judgment motion; rather, there must exist in the record a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. A. Title VII’s prohibition on employment practices that discriminate “because of [an] individual’s sex,”" }, { "docid": "11785152", "title": "", "text": "to work at an earlier point. Jones was subsequently suspended so that Daniels could investigate his conduct during medical leave. Although Jones was given an opportunity to respond to these charges in a letter, he failed to do so. Several days later, Jones’s employment was terminated. B. Procedural background In February 2015, Jones brought suit against Accentia in Florida state court. Jones alleged that, in suspending and later terminating him, Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. Accentia removed the action to the United States District Court for the Middle District of Florida, and subsequently moved for summary judgment on both of Jones’s claims. In February 2016, the district court granted Accentia’s motion for summary judgment, holding that Jones had failed to establish a prima facie case of either interference or retaliation under the FMLA. This timely appeal followed. II. STANDARD OF REVIEW We review de novo the district court’s grant of summary judgment, “viewing all the evidence, and drawing all reasonable inferences, in favor of the non-moving party.” Vessels v.-Atlanta Inde-p. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary judgment is proper only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. IcL; Fed. R. Civ. P. 56(c). III. DISCUSSION A. The FMLA The FMLA grants eligible employees a series of entitlements, among them the right to “a total of 12 workweeks of leave during any 12-month period” for a number of reasons, including “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). To preserve and enforce these rights, “the FMLA creates two types of claims: interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act ... [,] and retaliation claims, in which an employee asserts that his employer discriminated against-him because he engaged in activity protected by the Act.” Strickland v. Water Works & Sewer Bd." }, { "docid": "23700576", "title": "", "text": "filed a complaint in the district court, asserting violations of his right to free speech under the First Amendment and the Arkansas Constitution, the prohibitions on sex discrimination and retaliation in the Arkansas Civil Rights Act (“ACRA”), and the Family and Medical Leave Act. On June 6, 2006, the EEOC concluded that his claim of sex discrimination was untimely, and that the evidence showed that he was “not discharged because of his sex, or in retaliation for complaining about sexual harassment,” but rather fired for sexually harassing his co-workers. After receiving a right to sue letter from the EEOC, McCullough filed an amended complaint, in which he added retaliation and sex discrimination claims under Title VII. Specifically, he claimed that he was terminated for filing sexual harassment complaints, and that he was treated differently from the two women, Tritt and Wooten, because he was fired and they were not. McCullough abandoned the FMLA claim, and the district court granted sum mary judgment in favor of the defendants on all remaining claims. II. We consider first the district court’s grant of summary judgment on the Title VII and ACRA claims, which are governed by the same standards. See Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 926 (8th Cir.2007). We review the grant of summary judgment de novo, viewing the evidence and drawing all reasonable inferences in the light most favorable to McCullough, the nonmoving party. Id. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). A. Title VII and the ACRA prohibit employers from discriminating based on sex with respect to compensation, terms, conditions, or privileges of employment. 42 U.S.C. § 2000e-2(a)(l); ArkCode. Ann. § 16-123-107. In this circuit, under both statutes, an employee may survive an employer’s motion for summary judgment in one of two ways. McGinnis v. Union Pac. R.R., 496 F.3d 868, 873 (8th Cir.2007). The employee may produce direct" }, { "docid": "16928462", "title": "", "text": "claims are barred by both res judicata and judicial estoppel. Approximately one year later, the district court granted summary judgment in favor of SSD regarding Browning’s and Rade-man’s claims. This appeal followed. (Because Browning and Rademan are in the same position as the ESOP for the purposes of this appeal, and the Appellants’ brief did not treat their interests separately from those of the ESOP, our analysis and conclusions concerning the ESOP also apply to Browning and Rademan.) II. ANALYSIS A. Standard of review This court reviews de novo a district court’s grant of summary judgment. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000). Summary judgment is proper where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists only when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. B. The district court did not err in concluding that NW’s claims are barred by the res judicata effect of the confirmation order in the Na-tionwise bankruptcy proceeding NW contends that the district court erred in granting summary judgment in favor of SSD on the basis of res judicata and judicial estoppel because (1) SSD’s concealment prevented NW from knowing about its claims against SSD at the time of the confirmation order, (2) SSD has failed to establish the elements of res judicata, and (3) NW expressly reserved its right to bring claims against SSD. 1. The district court did not err" }, { "docid": "570630", "title": "", "text": "a Hearing Examiner in the Wyoming’s Office of Administrative Hearings. The Examiner determined on summary judgment that DFS had established good cause for firing Ms. Brock-man as required under state law. See Wyo. Stat. Ann. § 9 — 2—1019(a)(iii) (Michie 2003). Ms. Brockman did not appeal the result of her administrative hearings. She filed suit in federal district against the State of Wyoming and the DFS employees alleg edly involved in creating the conditions that led to the onset of her symptoms and her firing, asserting a variety of claims under federal and state law. The district court granted the defendants’ motion for summary judgment on all claims and awarded costs to the defendants. Ms. Brockman appeals the following rulings by the district court: (1) dismissal, on the basis of collateral estoppel, of her claim for interference with, and denial of, medical leave under the self-care provision of the FMLA; (2) dismissal of her claim under the Rehabilitation Act that DFS failed to accommodate Ms. Brockman’s disability and committed wrongful discharge; and (3) dismissal of Ms. Brock-man’s pendent state tort claim against the individual defendants for intentional infliction of emotional distress. Ms. Brockman also argues that sovereign immunity does not bar her claims under either the FMLA or the Rehabilitation Act. Finally, Ms. Brockman argues that it was “unconscionable” for the district court to award costs against her. II. ANALYSIS The district court granted summary judgment for the defendants on all of Ms. Brockman’s claims. We review the grant of summary judgment de novo. Goldsmith v. Learjet, Inc., 90 F.3d 1490, 1493 (10th Cir.1996). Summary judgment is appropriate only 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.” Fed.R.Civ.P. 56(c). We analyze below each of the four substantive issues that Ms. Brockman raises on appeal: (1) FMLA claims, (2) Rehabilitation Act claims, (3) state tort claims, and (4) the award of costs to the defendants. Because state sovereign immunity is a threshold jurisdictional issue, we must address it first when it is asserted" }, { "docid": "3375604", "title": "", "text": "balance all the environmental interests involved. The complaint alleged both personal economic harm and general environmental harm. The Department moved for summary judgment on the grounds that (1) Ash Creek lacked standing to challenge the agency action, (2) the district court did not have the authority to compel the Secretary to offer specific lands for competitive bidding, (3) the claim was not ripe and (4) Ash Creek is not entitled to review of the agency decisions rejecting its protest. On December 18, 1989, the district court granted the Department’s motion for summary judgment, holding that Ash Creek lacked standing to sue and that the claim was unripe for decision. Id. at 2 n. 1, 6-12. After analyzing Ash Creek’s causes of action under the FLPMA and NEPA, the district court concluded that Ash Creek lacked standing because even if the court enjoined the proposed exchange until all statutory requirements had been met, it could not redress the harm to Ash Creek. Id. at 6-12. The district court also remarked that “it appears that this case is ... not ripe for judicial review.” Id. at 2 n. 1. The court did not consider whether the complaint failed to state a claim upon which relief may be granted. Ash Creek filed this appeal on January 16, 1990. The proposed exchange of the Ash Creek Tract for the Whitney Benefits Tract is still pending acceptance by Whitney Benefits. II. We review de novo a trial court’s grant of summary judgment, which requires us to examine the evidence in the light most favorable to the nonmoving party and determine (1) whether any genuine issues of material fact exist and (2) whether the district court correctly applied the relevant substantive law. Hokansen v. United States, 868 F.2d 372, 374 (10th Cir.1989). We may uphold “ ‘the granting of summary judgment if any proper ground exists to support the district court’s ruling.’ ” Id. (quoting Setliff v. Memorial Hosp. of Sheridan County, 850 F.2d 1384, 1391-92 (10th Cir.1988)). III. Ash Creek argues that the district court incorrectly concluded that it lacked standing to pursue its claim" }, { "docid": "21410533", "title": "", "text": "summary judgment to defendants on all claims, and Zastrow appealed the judgment as to his claims under RICO and 42 U.S.C. §§ 1981 and 1982. II. We review a district court’s grant of summary judgment de novo, applying the same legal standard as the district court. Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir.2003) (per curiam). Summary-judgment is appropriate only if, -interpreting all facts and drawing all reasonable inferences in favor of the non-moving party, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Where a summary judgment motion mounts challenges solely to the sufficiency of a plaintiffs pleadings, we review those challenges under a motion to dismiss standard. Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.1993). Under this standard, “[t]he plaintiff must plead enough facts to state a claim to relief that is plausible on its face.” Cines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir.2012) (internal quotation marks omitted). “We accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Id. (alteration and internal quotation marks omitted). III. Zastrow first argues that the district court erred in granting summary judgment to defendants on his civil RICO claim. A civil plaintiff has standing to sue under RICO if he has been “injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). Zastrow brought his claim under § 1962(c), which we have distilled to mean that “a person who is employed by or associated with an enterprise cannot conduct the enterprise’s affairs through a pattern of racketeering.” In re Burzynski, 989 F.2d 733, 741 (5th Cir.1993) (per cu-riam). To succeed on his claim, Zastrow must provide evidence of the existence of “1) a person who engages in 2) a pattern of racketeering activity, 3) connected to the acquisition, establishment, conduct, or control of an enterprise.'” Id. (internal quotation marks omitted). “Racketeering activity” means any of the predicate acts" }, { "docid": "1014421", "title": "", "text": "court reasoned that under the McDonnell Douglas burden-shifting framework, Salguero’s “conclusory statements in his own affidavit that [] other employees engaged in conduct of comparable seriousness” failed to demonstrate that the City’s legitimate reasons for his termination were pretextual. Salguero v. City of Clovis, No. 02-319 WJ/LCS, slip, op at 33 (D.N.M. April 22, 2003). Salguero appeals on two grounds: (1) the grievance board was not an adjudicative body that presented him with a full and fair opportunity to litigate the issue of just cause; and (2) he presented genuine questions of fact establishing that the City’s reasons for his termination were pretextual. II We review a summary judgment grant de novo and apply the same legal standard used by the district court. McCowan v. All Star Maint., Inc., 273 F.3d 917, 921 (10th Cir.2001). Drawing all reasonable inferences in the light most favorable to the nonmoving party, see Simms v. Oklahoma ex rel., 165 F.3d 1321, 1326 (10th Cir.1999), summary judgment is appropriate “if the pleadings ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We also review de novo the district court’s application of the doctrine of collateral estoppel. Dodge v. Cotter Corp., 203 F.3d 1190, 1197 (10th Cir.2000); see also Gonzales v. Hernandez, 175 F.3d 1202, 1204 (10th Cir.1999) (similarly reviewing de novo a grant of summary judgment on the ground that the claims were barred under the doctrine of collateral estoppel). A With respect to his contract claim, Sal-guero argues that the doctrine of collateral estoppel should not bar him from litigating his claim in federal district court. Salgue-ro raises two primary challenges on appeal: (1) that the decision of the grievance board should not be granted preclusive effect because the board was not acting in a judicial capacity; and (2) that the board did not afford him a full and fair opportunity to litigate his breach of contract claim. Applying the principles of collateral estoppel, or issue preclusion, to decisions of state administrative bodies" }, { "docid": "6943412", "title": "", "text": "Representative Sharon Jones, and Supervisor Paul Akeo held a disciplinary conference during which the Summary of Investigation Report was to be reviewed, Plaintiff was to be interviewed about the planned discipline, and discipline was to be imposed as directed by Dean. Plaintiff indicates that Easley gave him a packet of Separation-from-State documents. He claims he was then told that he was terminated but that he did not say “one word” in response. Conversely, Defendant claims Plaintiff repeatedly cursed at Easley and yelled at Blackburn during the meeting. Plaintiff filed a grievance regarding his termination, but the arbitration went against him. Plaintiff then brought suit in district court alleging, among other claims, employment discrimination in violation of Title VTI, as well as interference with an entitlement and retaliation under the FMLA. On Defendant’s motion, the district court granted summary judgment to Defendant on all of Plaintiffs claims. Plaintiff timely appealed. II. ANALYSIS We review the district court’s grant of summary judgment de novo. Blackmore v. Kalamazoo Cty., 390 F.3d 890, 894 (6th Cir.2004). Summary judgment is appropriate where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Defendant bears the burden of showing the absence of a genuine dispute of material fact as to at least one essential element of Plaintiffs claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Plaintiff must then present sufficient evidence from which a jury could reasonably find in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We then consider whether, drawing all reasonable inferences in favor of Plaintiff, Defendant must prevail as a matter of law. Harrison v. Ash, 539 F.3d 510, 516 (6th Cir .2008). The district court correctly determined that Plaintiff has not presented sufficient direct or circumstantial evidence showing he was terminated because of his race, and so his Title VII claim must fail. However, the district court erred in finding that Plaintiff had not pled a valid, FMLA-protected absence." }, { "docid": "15547040", "title": "", "text": "termination violated the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (FMLA); the Americans with Disabilities Act, 42 U.S.C. § 1210HADA); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; the Thirteenth Amendment; and the Wisconsin Fair Employment Act, Wis. Stat. §§ 111.31-111.395 (WFEA). The district court had proper jurisdiction over the WFEA claims under 28 U.S.C. § 1367. On June 23, 2005, the court granted summary judgment for Waste Management. Pursuant to Fed. R. Civ. P. 59(e), 60(b), Anders made a “Motion to Alter and Amend Judgment and Relief from Judgement and Order.” The district court denied his motion on August 29, 2005. This appeal followed. Anders argues now that there were genuine issues of material fact as to each of his claims. II. Analysis We review the district court’s grant of summary judgment de novo, construing all facts and drawing all reasonable inferences in favor of the nonmoving party. Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir.2006). Summary judgment is appropriate if the moving party demonstrates “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). Material facts are facts that “might affect the outcome of the suit” under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party opposing summary judgment may not rest upon mere allegations or denials contained in their pleadings; instead, it is incumbent upon them to introduce affidavits or other evidence setting forth specific facts showing a genuine issue for trial. See, e.g., Williams v. Seniff, 342 F.3d 774, 785 (7th Cir.2003); see also Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469, 478 (7th Cir. 1995). A. Race Discrimination We examine first Anders’s claim that Waste Management fired him on the basis of race. This portion of our review includes his arguments for relief under Title VII, § 1981, and the WFEA. At the" }, { "docid": "6354044", "title": "", "text": "material dispute of fact as to the second ground. The district court rejected these arguments, and granted summary judgment on each ground. This timely appeal followed. II The question on summary judgment is whether the moving party has demonstrated that the evidence available to the court establishes no genuine issue of material fact such that it is entitled to a judgment as a matter of law. Fed.R.CivP. 56(c). We draw all justifiable inferences in the light most favorable to the non-moving party, Matsush0ita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and review the district court’s decision de novo. Smith v. Williams-Ash, 520 F.3d 596, 599 (6th Cir.2008). Because we resolve the eligibility dispute in Jay Dee’s favor, we will not discuss the district court’s alternative ground for granting summary judgment. A All now agree that Dobrowski was not in fact eligible for FMLA protection because Jay Dee did not have the requisite 50 employees within 75 miles of the Wastewater worksite. Instead, the dispute centers on whether Jay Dee’s statements that Dobrowski was being given FMLA leave now bind the defendant under the doctrine of equitable estoppel such that we should treat him as entitled to the Act’s protections. Our circuit recognizes that in certain circumstances equitable estoppel applies to employer statements regarding an employee’s FMLA eligibility, preventing the employer from raising non-eligibility as a defense. See Sorrell v. Rinker Mate rials Corp., 395 F.3d 332, 336 (6th Cir.2005) (remanding for the district court to consider whether an employer is estopped from denying its employee’s eligibility); see also Davis v. Mich. Bell Telephone Co., 543 F.3d 345, 353 (6th Cir.2008) (holding that the plaintiff could not establish the basis for equitable estoppel); Mutchler v. Dunlap Memorial Hosp., 485 F.3d 854, 860-61 (6th Cir.2007) (same); Wilkerson v. Autozone, Inc., 152 Fed.Appx. 444, 450 (6th Cir.2005) (endorsing a district court’s use of an equitable estoppel jury instruction). But our precedents do not make clear precisely which situations merit the application of equitable estoppel. We have cited two different equitable estoppel" }, { "docid": "22942906", "title": "", "text": "nonverbal racial harassment as a condition of his employment. On May 26, 1995, Huekabay filed a charge of discrimination with the EEOC, alleging a hostile work environment. He received a right-to-sue letter and filed this suit, alleging violations of 42 U.S.C. §§ 1981,1983, and 2000e, as well as Texas tort and state constitutional claims. The district court granted summary judgment in favor of Moore and the county. On appeal, Hucka-bay challenges the summary judgment as to his title VII claim and his state tort and constitutional claims, but he abandons his claims under §§ 1981 and 1983. II. We review a summary judgment de novo. See Hanks v. Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that there is a genuine issue for trial. See Hanks, 953 F.2d at 997. We begin our determination by consulting the applicable substantive law to determine what facts and issues are material. See King v. Chide, 974 F.2d 653, 655-56 (5th Cir.1992). We then review the evidence relating to those issues, viewing the facts and inferences in the light most favorable to the non-movant. See id. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue is presented. See Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.1994). III. A. In a state that, like Texas, provides a state or local administrative mechanism to address complaints of employment discrimination, a title VII plaintiff" }, { "docid": "6354043", "title": "", "text": "of the company’s other projects needed an additional engineer. When asked why Jay Dee did not communicate its decision earlier, DiPonio responded “Why? So you could stay on medical leave?” Dobrowski then sued in state court, alleging a violation of the Michigan Handicapper’s Civil Rights Act. He later amended his complaint to include a claim under the FMLA, and Jay Dee removed the case to federal court. The district court declined to exercise supplemental jurisdiction over the state law claim and remanded it to state court. Following discovery, Jay Dee moved for summary judgment, arguing that (1) Dobrowski was not eligible for FMLA protection because Jay Dee employed fewer than 50 employees within 75 miles of Dobrowski’s work site; and (2) he was not entitled to reinstatement because his job was eliminated from the project. In response, Dobrowski argued that the doctrine of equitable estoppel applied to prevent Jay Dee from denying his eligibility after having indicated to him at the time of his surgery that he was eligible, and that the record established a material dispute of fact as to the second ground. The district court rejected these arguments, and granted summary judgment on each ground. This timely appeal followed. II The question on summary judgment is whether the moving party has demonstrated that the evidence available to the court establishes no genuine issue of material fact such that it is entitled to a judgment as a matter of law. Fed.R.CivP. 56(c). We draw all justifiable inferences in the light most favorable to the non-moving party, Matsush0ita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and review the district court’s decision de novo. Smith v. Williams-Ash, 520 F.3d 596, 599 (6th Cir.2008). Because we resolve the eligibility dispute in Jay Dee’s favor, we will not discuss the district court’s alternative ground for granting summary judgment. A All now agree that Dobrowski was not in fact eligible for FMLA protection because Jay Dee did not have the requisite 50 employees within 75 miles of the Wastewater worksite. Instead, the" }, { "docid": "23575311", "title": "", "text": "on its previous summary judgment ruling, the District Court denied the motion as moot. Mr. Combs challenges this ruling in a separately filed appeal (“motion to amend appeal”). In September 2003, Ms. Bennett moved to consolidate the two appeals, which was granted. She also moved this Court, pursuant to 10th Cir. R. 27.2(A)(1), to dismiss the motion to amend appeal, arguing that mootness and lack of appellate jurisdiction preclude review of the District Court’s decision. We consider this argument, along with the merits of Mr. Combs’ appeal, below. II. SUMMARY JUDGMENT Mr. Combs presents two arguments against the necessity of a derivative action in this case. First, he asserts that he may sue in his individual capacity because Ms. Bennett “cause[d] him injury as a stockholder, unique to himself and not suffered by the other stockholders.” Nicholson v. Ash, 800 P.2d 1352, 1357 (Colo.Ct.App.1990). Second, he urges that, because AIS is a close corporation, filing this suit in a derivative capacity would not further the policies served by the derivative action procedure. Applying Colorado law, we disagree. A. Standard of Review We review the District Court’s “grant of summary judgment de novo, applying the same standards used by the district court.” Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). We view the evidence, and draw reasonable inferences therefrom, in the light most favorable to the nonmoving party. Byers, 150 F.3d at 1274. B. Standing as a Unique Shareholder To escape summary judgment on his breach of fiduciary duty claim, Mr. Combs must put forth evidence of the elements of a breach of fiduciary duty, see Graphic Directions, Inc. v. Bush, 862 P.2d 1020, 1022 (Colo.Ct.App.1993) (providing elements), and also establish that he has standing, see River Mgmt. Corp. v. Lodge Props. Inc., 829 P.2d 398, 403" }, { "docid": "2080681", "title": "", "text": "Plaintiff filed a detailed affidavit describing her claims and the circumstances which led to her termination. Three days later, the district court ordered that the pending discovery dispute be held in abeyance pending its decision on summary judgment. Plaintiff has represented that the parties had an understanding that discovery would be put on hold until the district court resolved the collateral estoppel issues in the pending summary judgment motion. On January 12, 2012, the district court granted summary judgment to Defendants on all claims, finding that Count One was not authorized by statute and that Count Three was barred by collateral estoppel. Having found that collateral estoppel applied, the district court could have resolved Counts Two and Four in a similar fashion, but instead determined — without the bene fit of briefing or argument from the parties — that Count Two failed on the merits and that Count Four had been insufficiently pleaded. Plaintiff filed a timely Notice of Appeal. DISCUSSION We review a district court’s grant of summary judgment de novo. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.2006). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Ford v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “In reviewing the record, we view the factual evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in that party’s favor.” Slusher v. Carson, 540 F.3d 449, 453 (6th Cir.2008) (citations omitted). In reviewing Plaintiffs claims under Ohio law, this Court applies state law in accordance with the currently controlling decisions of the Ohio Supreme Court. Metz v. Unizan Bank, 649 F.3d 492, 496 (6th Cir.2011). I. Age Discrimination Under Ohio Rev. Code § 4112.14 Plaintiff alleges" }, { "docid": "17652974", "title": "", "text": "and collateral estoppel. Invoking offensive collateral estop-pel from the state court finding that Plaintiffs had made a prima facie case, Plaintiffs also moved for summary judgment, asserting that the state court’s decision that the 5'2\" height requirement adversely impacted women collaterally estops Northwest from relit-igating this issue in the federal suit. The district court granted Northwest’s motion for summary judgment, holding that res judicata barred the federal class action suit, and dismissed the suit with prejudice. The district court based its decision on a finding that the absent federal class members (the Class) were in privity with Novack, Glapa and Shal-ler (the “state court plaintiffs” or “certified representatives”) when they prosecuted their state court suit. Plaintiffs appeal, alleging the district court erred in (1) determining that res judicata barred the federal class action because the state court plaintiffs were not in privity with the Class; (2) applying res judicata because its application would bar the class action on the basis of a ruling that runs counter to federal Title VII standards; (3) denying Plaintiffs’ motion for summary judgment on the ground of collateral estoppel; and (4) finding that Sondel did not comply with the administrative prerequisites of Title VII. II. DISCUSSION A. Res Judicata The prior state court judgment in Novack is entitled to the same preclusive effect in federal court as it would receive in Minnesota. 28 U.S.C. § 1738 (1988); Charchenko v. City of Stillwater, 47 F.3d 981, 984 (8th Cir.1995). We review the district court’s interpretation of state law de novo, giving its decision no deference. Slaughter v. American Casualty Co., 37 F.3d 385, 387 (8th Cir.1994) (citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220, 113 L.Ed.2d 190 (1991)). We review the district court’s grant of summary judgment de novo. Commercial Union Ins. Co. v. McKinnon, 10 F.3d 1352, 1354 (8th Cir.1993). We must determine whether the evidence, when viewed in the light most favorable to the nonmoving party, establishes that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of" }, { "docid": "12190478", "title": "", "text": "appealed, but the ease ultimately settled for the minimal amount of $15,000. The settlement put the Property’s title back in Mr. Johnson’s name and revived Mrs. Johnson’s homestead rights. In March 2014, Mrs. Johnson did not sue Baker — she sued Appellees. She brought claims of breach of contract, fraudulent inducement, violations of the Texas Debt Collections Act, and promissory estoppel. Mrs. Johnson primarily argued that the Property’s foreclosure could have been avoided if WAF had not issued a HECM in violation of the United States Housing and Urban Development (“HUD”) guidelines. In July 2015, a magistrate judge issued his Report and Recommendation (“R & R”) dismissing Mrs. Johnson’s amended complaint on summary judgement. Mrs. Johnson filed objections, but the district court adopted the R & R. Mrs. Johnson timely appealed. STANDARD OF REVIEW This court reviews a district court’s grant of summary judgment de novo, applying the same standards as the district court. Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 275-76 (5th Cir. 2014). Summary judgment is appropriate if “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “On a motion for summary judgment, [this Court] must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir. 2009). Once the moving party has made an initial evidentiary showing that negates the existence of a genuine, material fact issue, the party opposing the motion must present competent summary judgment evidence of the existence of a genuine issue of fact. Fed. R. Civ. P. 56(e); see also Matsushita Elec. Indus. Co." }, { "docid": "19877440", "title": "", "text": "Wolfe County Board of Education, Stephen Butcher, and Howard Osborne on Banks’ First Amendment claim. The district court concluded that Banks’ speech did not address a matter of public concern. The district court dismissed with prejudice Banks’ state whistleblower claim on statute of limitations grounds. In the present appeal, Banks challenges only the district court’s granting of summary judgment in favor of Defendants on the First Amendment claim. Banks does not challenge the district court’s ruling on her state whistle-blower claim. II. Standard of Review This court reviews the district court’s grant of summary judgment de novo. Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th Cir.2001). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.CÍV.P. 56(c). In deciding a motion for summary judgment, the court must view the factual evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[T]he party opposing the motion may not rely solely on the pleadings and must adduce more than a mere scintilla of evidence; if the nonmoving party fails to make a sufficient showing on an essential element of the case with respect to which the nonmovant has the burden, the moving party is entitled to summary judgment as a matter of law.” Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir.2001). A genuine issue for trial exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. Applicable Law Not all speech by a public employee is protected by the First Amendment. In order to make out a prima facie case for a First Amendment claim, Banks, a public employee who claims" }, { "docid": "22059208", "title": "", "text": "the contract claim pursuant to Rule 12(b)(6), arguing that the letter was insufficient to satisfy the statute of frauds. Both parties essentially incorporated by reference their briefs on the 12(c) motion. The district court granted AWG’s 12(b)(6) motion, expressly considering the letter. AWG then moved for summary judgment pursuant to Rule 56 on the fraud claim, and the district court granted that motion as well. GFF moved for reconsideration of the dismissal of its contract claim, arguing for the first time that the court should have applied auction law principles to the case, and that newly discovered evidence supported an argument that several documents together satisfied the statute of frauds. The district court denied the motion. On appeal, GFF argues that the district court erred in dismissing the contract claim (1) by not converting the 12(b)(6) motion into one for summary judgment based on its consideration of outside material, (2) by not then considering outside materials on the motion for reconsideration, (3) in concluding that the statute of frauds was not satisfied, and (4) by failing to find an implied contract. GFF also appeals from the entry of summary judgment on its fraud claim, contending that the district court erred in concluding GFF was not damaged. Discussion I. Dismissal of Breach of Contract Claim As the sufficiency of a complaint is a question of law, we review de novo the district court’s grant of a motion to dismiss pursuant to 12(b)(6). See Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10th Cir. 1995); Housley v. Dodson, 41 F.3d 597, 598 (10th Cir.1994). A 12(b)(6) motion should not be granted “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); see Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir.1992). All well-pleaded factual allegations in the complaint are accepted as true, see Ash Creek Mining Co., 969 F.2d at 870, and viewed in the light most favorable" } ]

[ { "docid": "17373574", "title": "", "text": "Page’s offense behavior as “Greatest I” severity due to his participation in a distribution operation involving 2.9 kilograms of 100% pure cocaine. Under such a severity rating, the Commission guidelines require incarceration for forty to fifty-two months. The Commission ruled that Page’s imprisonment would continue until expiration of his sentence with a statutory interim hearing in July 1981. Page now raises a number of issues, most of which we are able to consider. Initially, we will examine Page's contention that the Commission’s guidelines are illegal. 18 U.S.C. § 4203(b)(1) gives the Commission the power to grant or deny parole. Page contends that the power to deny parole after a prisoner becomes eligible usurps the power of the sentencing judge. Clearly, the power to grant or deny parole has been vested by Congress in the Commission. This does not infringe upon the judiciary in any fashion. A denial of parole merely requires the prisoner to serve out the length of his sentence. The denial does not enhance the sentence imposed upon the prisoner by the court. Parole is only an expectation that may be granted by the Commission. See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 11, 99 S.Ct. 2100, 2105-2106, 60 L.Ed.2d 668, 677 (1979). A federal court may not reverse the decision of the Commission unless the latter involves flagrant, unwarranted, or unauthorized action. United States v. Norton, 539 F.2d 1082, 1083 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). Petitioner next contends that he was not granted a fair hearing since the Commission considered the facts surrounding the underlying smuggling charge which was dismissed in return for the plea bargain. Page claims that if the Commission had considered only the charge to which he pled guilty, his recommended incarceration period under the guidelines would be fourteen to twenty months. The Commission has the right to consider any evidence that existed at the time of sentencing including that of more serious counts which were dismissed pursuant to a plea bargain. Bistram v. United States Parole Board," } ]

[ { "docid": "4162424", "title": "", "text": "one-third of the “term or terms” he is serving. 18 U.S.C. § 4205(a) (emphasis supplied). Consistent with the language of the statute, this Circuit has long held it proper for the Commission to aggregate consecutive sentences for the purpose of determining parole eligibility. Wright v. Blackwell, 402 F.2d 489, 489 (5th Cir. 1968). See also Goode v. Markley, 603 F.2d 973, 976-77 (D.C.Cir.1979). The Commission, therefore, properly computed petitioner’s term of imprisonment in determining his parole eligibility. It is equally clear that the Commission need not give petitioner Miranda warnings during a parole release proceeding under 18 U.S.C. § 4208 when questioning him about the circumstances surrounding his offense. This Court previously has held that “Miranda’s prophylaxis is inapplicable in a probation revocation proceeding.” United States v. MacKenzie, 601 F.2d 221, 222 (5th Cir. 1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980); United States v. Johnson, 455 F.2d 932, 933 (5th Cir. 1972). We hold today that Miranda is similarly inapplicable to parole release proceedings. A prisoner’s interest in parole release, which is merely a conditional liberty within the Commission’s discretion, is for purposes of due process protection much less than an individual’s interest in probation revocation, which deprives him of a liberty that he already possesses. Green-holtz, supra, 442 U.S. at 10, 99 S.Ct. at 2105. Furthermore, a parole release proceeding is administrative, not adversarial, and both sides ultimately benefit if the sometimes burdensome protections of due process are not imposed. Johnson, supra, 455 F.2d at 933. Having examined all the challenges presented to the district court, we find them to be without merit. AFFIRMED. . Petitioner also argues that the Parole Commission abused its discretion in failing to state with particularity the reasons for classifying his offense “Greatest II” as required under 18 U.S.C. § 4206(c). We disagree. The notice of action given to petitioner states clearly that his offense was rated “Greatest II” because it involved kidnapping, physical force, and use of firearms. It informed petitioner of his salient factor score and the range of months to be served before release. This" }, { "docid": "4162412", "title": "", "text": "the writ. I. OFFENSE SEVERITY RATING The Parole Commission and Reorganization Act (PCRA), 18 U.S.C. § 4201 et seq. provides that the Parole Commission must consider “the nature and circumstances of the offense and the history and characteristics of the prisoner” in deciding whether to release a prisoner on parole. Id. § 4206(a). Section 4203 gives the Commission the authority to promulgate regulations establishing guidelines for determining parole eligibility. 18 U.S.C. § 4203(a)(1). The guidelines for parole release consideration suggest the customary range of time to be served before release for various combinations of offense severity and offender characteristics. To assist the Commissioners, the guidelines also contain examples of offense behaviors for each severity level. Mitigating or aggravating circumstances in a particular case may justify a decision or a severity rating different from that listed. 20 C.F.R. § 2.20(b). Petitioner objects to the Commission’s characterization of the aggravating circumstances surrounding his offense. Responding to questions during his initial hearing in August 1979, petitioner admitted that in the process of committing bank extortion he transported persons in vehicles against their will through the use of firearms and physical force. Petitioner maintained before the Commission that his abduction of bank officials constituted illegal confinement rather than kidnapping. Nevertheless, the Commission ranked his offense behavior as “Greatest II severity because it involved the kidnapping of bank officials or their family members, physical force, threats of violence and use of firearms.” Petitioner insists that the Commission cannot classify his offense behavior as “kidnapping” since he was never charged with kidnapping and since it was never established that his conduct would violate the elements of kidnapping as set out in 18 U.S.C. § 1201(a)(1). See also United States v. McBryar, 553 F.2d 433 (5th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 136 (1977). This Court cannot disturb a decision by the Commission setting the time for parole release absent a showing that the action is “flagrant, unwarranted, or unauthorized.” Page v. United States Parole Commission, 651 F.2d 1083, 1085 (5th Cir. 1981); United States v. Norton, 539 F.2d 1082, 1083 (5th" }, { "docid": "2888585", "title": "", "text": "of the kidnapping statute, 18 U.S.C. § 1201(a). Section 1201(a) states in pertinent part: Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, when: (1) the person is willfully transported in interstate or foreign commerce; shall be punished by imprisonment for any term of years or for life. 18 U.S.C. § 1201(a)(1) (emphasis added). The focus of our inquiry centers initially on the statutory language that the victim be held “for ransom, reward or otherwise.” After examining the legislative history of the 1936 amendment to section 1201 and pertinent Supreme Court cases, the court of appeals in Gawne v. United States, 409 F.2d 1399, 1402-03 (9th Cir.1969), cert. denied, 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970), concluded that “obviously ‘otherwise’ comprehends any purpose at all.” (citation omitted). Because “otherwise” was intended to mean “any other reason,” the court held that defendants’ purpose for the kidnapping was not an element of the offense. Id. at 1403. The government maintains that because “purpose” is an element of kidnapping and, in order to sustain its burden of proof as to this element it was required to present evidence of the sexual assault, purpose was therefore relevant to prove the offense of kidnapping. In support of this argument, the government cites a number of cases which hold generally that evidence of “some purpose” was sufficient to satisfy the federal kidnapping statute. See United States v. Eagle Thunder, 893 F.2d 950, 953 (8th Cir.1990); (evidence of sexual assault sufficient to show “some purpose of his own”); United States v. McBryar, 553 F.2d 433 (5th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 136 (1977) (evidence of sexual gratification sufficient to meet “or otherwise” requirement); United States v. Lutz, 420 F.2d 414, 416 (3d Cir.), cert. denied, 398 U.S. 911, 90 S.Ct. 1709, 26 L.Ed.2d 73 (1970) (evidence of rape sufficient to satisfy “or otherwise” element). In United States v. McCabe, 812 F.2d 1060, 1062 (8th Cir.) cert. denied, 484 U.S. 832, 108 S.Ct. 108, 98 L.Ed.2d 67" }, { "docid": "4162425", "title": "", "text": "release, which is merely a conditional liberty within the Commission’s discretion, is for purposes of due process protection much less than an individual’s interest in probation revocation, which deprives him of a liberty that he already possesses. Green-holtz, supra, 442 U.S. at 10, 99 S.Ct. at 2105. Furthermore, a parole release proceeding is administrative, not adversarial, and both sides ultimately benefit if the sometimes burdensome protections of due process are not imposed. Johnson, supra, 455 F.2d at 933. Having examined all the challenges presented to the district court, we find them to be without merit. AFFIRMED. . Petitioner also argues that the Parole Commission abused its discretion in failing to state with particularity the reasons for classifying his offense “Greatest II” as required under 18 U.S.C. § 4206(c). We disagree. The notice of action given to petitioner states clearly that his offense was rated “Greatest II” because it involved kidnapping, physical force, and use of firearms. It informed petitioner of his salient factor score and the range of months to be served before release. This notice is sufficient. See Solomon v. Elsea, 676 F.2d 282, 286 (7th Cir. 1982); Stroud v. United States Parole Commission, 668 F.2d 843, 846 (5th Cir. 1982). . Petitioner’s reliance on United States ex rel Metro v. United States Parole Commission, 613 F.2d 117 (5th Cir. 1980), and Graham v. United States Parole Commission, 629 F.2d 1040, 1041-42 (5th Cir. 1980), is misplaced. We did not address the question of whether the two- year requirement applied strictly when the Commission held the initial hearing earlier than § 4208(a) requires. The petitioners in Metro and Graham received their initial hearings and their first interim hearings after they were eligible for parole. They petitioned for habeas corpus relief on the ground that the limited hearing held by the Commission violated 18 U.S.C. § 4208(h)(2). We found that a full-scale hearing was not necessary. . The Supreme Court has recognized the possible detriment to prisoners that could result from the broad application of due process protections: “If parole determinations are encumbered by procedures that states regard as burdensome" }, { "docid": "6786653", "title": "", "text": "its Notice of Action dated July 30, 1976 the petitioner was advised: “Your offense behavior has been rated as greatest severity because behavior involved kidnapping. You have a salient factor score of 8. You have been in custody a total of three months. Guidelines established by the Commission for youth cases which consider the above factors indicate a range of 32 plus months to be served before release for cases with good institutional program performance and adjustment. After review of all the relevant factors and information presented, a decision outside the guidelines at this consideration is not found warranted. Commission policy prohibits a continuance in your case of more than 18 months without review. Your next review has been scheduled in accordance with this policy.” The first issue is whether it was proper for the Parole Commission to consider the counts which had been dismissed in giving the petitioner his offense severity rating. The regulations of the Commission permit it to take into consideration aggravating circumstances in setting the degree of offense severity. An adjustment based on the individual circumstances of the prisoner’s case clearly falls within the discretion of the Parole Commission. Brown v. Lundgren, 528 F.2d 1050 (CA5 1976). On very similar facts the court upheld the action of the Parole Board in Bistram v. U. S. Parole Board, 535 F.2d 329, 330 (CA5 1976): “Appellant, represented by counsel, was convicted on his plea of guilty of attempted bank robbery with a dangerous weapon, 18 U.S.C.A. § 2113(d). He was sentenced to 25 years on October 30, 1967. Appellant states that under his plea bargain, the court dismissed a kidnapping count, based on his taking of a hostage. Appellant complains because the Parole Board has classified his offense as of ‘greatest’ severity. He contends this is error because he was convicted only of attempted armed robbery, rated ‘very high’ severity, and the kidnapping charge was dismissed. As the district court’s order well demonstrates, 28 C.F.R. § 2.20 (1975) authorizes the Board to modify an offense rating if there were mitigating or aggravating circumstances. Obviously there were aggravating circumstances" }, { "docid": "11637870", "title": "", "text": "Although the guidelines indicated a recommended sentence of 24-32 months, the panel recommended that Stroud serve his entire sentence because of a criminal record indicating seven adult convictions for serious offenses since 1969, several of which involved fraudulent behavior. Stroud asserted that his salient factor score was incorrectly calculated, the decision of the panel was not supported by reasons, mitigating circumstances justified a different decision, the panel did not follow correct procedure, significant new information was available, and there were ■compelling reasons for a more lenient decision. Stroud submitted additional material and appealed this decision to the Regional Commission. The Regional Commission affirmed the panel decision finding that the additional information was not significant. The National Appeals Board affirmed, one commissioner dissenting, the panel decision on July 18, 1980, indicating that “previous reasons given support this decision.” After exhausting these administrative remedies, Stroud filed a pro se federal habeas action alleging incorrect computation of salient factor score, insufficient reasons for sentence above the guidelines and violation of due process. Stroud asserted that he was eligible for parole after serving 20 months, or one-third of his five year sentence. Alternatively, he argued that he should be released after serving 24 to 32 months, the recommended sentence in the guidelines. The District Court referred the case to a magistrate who recommended dismissal of his claims. The magistrate’s recommendation was adopted by the District Court. From the dismissal of his petition by the District Court, Stroud appeals. II. The Commission is vested with authority to determine the time of release for a prisoner, with certain limitations. 18 U.S.C. § 4201 et seq.; United States v. Addonizio, 442 U.S. 178, 188, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805, 813 (1979). That decision will not be reversed by a federal court absent “flagrant, unwarranted, or unauthorized action” by the Commission. Page v. United States Parole Commission, 651 F.2d 1083, 1085 (5th Cir. 1981); United States v. Norton, 539 F.2d 1082, 1083 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). So long as there aré no violations of any" }, { "docid": "10022050", "title": "", "text": "also Petite v. United States, 1960, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490. . Cf. United States v. Caceres, 1979, - U.S. -, 99 S.Ct. 1465, 59 L.Ed.2d 733 (evidence obtained in violation of IRS internal regulations would not be excluded from a criminal prosecution; enforcement of the regulations left to the executive agency); United States v. Hayes, 5 Cir. 1979, 589 F.2d 811, 818 (statement by the Attorney General that was not promulgated and published as an official regulation cannot be used to invalidate an otherwise valid grand jury indictment). . See, e.g., United States v. Pheaster, 9 Cir. 1976, 544 F.2d 353, 362, cert. denied, 1977, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546. . “Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” . See also United States v. Atchison, 7 Cir. 1975, 524 F.2d 367, 370 n. 4, quoting Gawne v. United States, 9 Cir. 1969, 409 F.2d 1399, cert. denied, 1970, 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123 (“the true elements of the offense are an unlawful seizure and holding, followed by interstate transportation”). The Fifth Circuit’s formulation of the elements of kidnapping under the statute is not materially different. See United States v. McBryar, 5 Cir. 1977, 553 F.2d 433, cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 136; Hattaway v. United States, 5 Cir. 1968, 399 F.2d 431 ((1) transportation in interstate commerce; (2) of an unconsenting person who is (3) held “for ransom or reward, or otherwise”; (4) such acts being done knowingly and willfully). . “§ 1201. Kidnaping “(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when: “(1) the person is willfully transported in interstate or foreign commerce; “(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States; “(3)" }, { "docid": "4095988", "title": "", "text": "institutional review hearing in December, 1975. On December 6, 1975, Petitioner came before the parole board at the Terre Haute Penitentiary for a review hearing. At that time, he was informed by the hearing examiner that his offense severity rating would be increased, because the offense involved kidnapping. The panel recommended a release date of March 2, 1976, due to “subject’s adjustment and the fact that he has accepted his guilt . . . ” This recommendation was referred to the National Board of Parole for reconsideration by Lawrence A. Carpenter, Regional Director, North Central Region, United States Board of Parole, pursuant to applicable regulations. 28 C.F.E. § 2.24 (1975). The National Appellate Board reversed, and continued Petitioner’s case until December, 1977, giving the following reasons: Your offense behavior has been rated as greatest severity because the offense in- eluded kidnapping. You have a salient factor score of six. You have been in custody a total of 41 months. Guidelines established by the Board for adult cases which consider the above factors, indicate a range of more than 45 months to be served before release for cases with good institutional program performance and adjustment. Board guidelines for greatest severity eases do not specify a maximum limit. Therefore, the decision in your case has been based in part upon a comparison of the relative severity of your offense behavior with offense behavior examples listed in the very high severity category. It is this ruling that Petitioner seeks judicial review of in this action. In his brief filed shortly after his petition, the Petitioner through his counsel lists three (3) issues for review. “A) Whether the decision of the parole board was arbitrary and capricious in finding Petitioner’s offense ‘included kidnapping’ contrary to the government’s own ‘official version’. “B) Whether the decision of the National Appellate Board raising for the first time such allegations that his alleged offense ‘involved kidnapping’ and ‘auto theft’ without permitting Petitioner reasonable opportunity to contradict and to rebut these allegations has the effect of depriving Petitioner of due process of law. “C) Whether the decision of the" }, { "docid": "4162415", "title": "", "text": "consideration of aggravating factors to the offense charged or to possible offenses that might have been charged given the facts available at the time of sentencing. This Court has affirmed repeatedly the right of the Commission to consider any evidence that existed at the time of sentencing that would constitute a mitigating or aggravating circumstance affecting the prisoner’s offense rating. Page, supra, 651 F.2d at 1086; Jackson v. Reese, 608 F.2d 159, 160 (5th Cir. 1979); Payne v. United States, 539 F.2d 443, 444 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1131, 51 L.Ed.2d 554 (1977); Bistram v. United States Parole Board, 535 F.2d 329, 330 (5th Cir. 1976); Brown v. Lundgren, 528 F.2d 1050, 1055 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). Under these circumstances, the Parole Commission’s characterization of petitioner’s offense behavior as “Greatest II Kidnapping” can hardly be viewed as “flagrant, unwarranted, or unauthorized” so as to require reversal in federal court. See Stroud, supra, 668 F.2d at 846; Page, supra, 651 F.2d at 1085. We also reject petitioner’s contention that the guidelines established in 28 C.F.R. § 2.20 violate the PCRA and the equal protection guarantee contained in the due process clause of the Fifth Amendment. Petitioner objects to the fact that he may serve a longer sentence than a person who commits an arguably graver offense. In upholding the guidelines against other constitutional challenges, this Court has held that the criteria and categories in 28 C.F.R. § 2.20 are within Congress’ intent in vesting the Commission with the discretionary power to grant or deny parole. Stroud, supra, 668 F.2d at 847; Page, supra, 651 F.2d at 1085-86. See also, Garcia v. Nea-gle, 660 F.2d 983, 991 (4th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982); Priore v. Nelson, 626 F.2d 211, 216-17 (2d Cir. 1980). We therefore, cannot say that the guidelines are inconsistent with the Commission’s responsibilities under the PCRA. Similarly, we must sustain the guidelines against petitioner’s equal protection challenge. It is elementary to recognize that due" }, { "docid": "18863861", "title": "", "text": "(1979) provides that a conviction for conspiracy in which the substantive offense was consummated shall be treated as if the Defendant committed the substantive offense. In addition, the Court of Appeals opinion recites that it was Petri who borrowed in excess of $1,300,000 from Chemical Bank through a number of worthless corporations owned by a “mini-conglomerate” controlled by Petri. It was from these transactions that Chemical ultimately lost over $1,100,000. United States v. Hockridge, 573 F.2d 752, (754-55) (2d Cir.), cert. denied, sub nom., Petri v. United States, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978). Petri has never denied these contentions and it is the Court’s conclusion that the Parole Commission was justified in relying on these facts, as well as the pre-sentence report which contained substantially the same information, in placing Petri’s offense behavior in the Greatest I range. Petri’s argument that the guidelines at 28 C.F.R. § 2.20 (1979) cannot be constitutionally applied to him is unpersuasive. Petri argues that it is unconstitutional for the Parole Commission to place his offense severity in the Greatest I range merely because of the dollar amount involved. He argues that it is arbitrary to apply the same parole guidelines to his offense which are applied to aggravated felonies, arson, kidnapping, and certain homicides. It is the Court’s view that the guidelines at 28 C.F.R. § 2.20 (1979) are a reasonable exercise of the Commission’s duty to promulgate rules and regulations to establish guidelines for parole as required by 18 U.S.C. § 4203(b). In addition, as the guidelines themselves make clear at 28 C.F.R. § 2.20(c), decisions outside the guidelines may be rendered “[w]here the circumstances warrant.” The summary of Petri’s parole hearing and the Commission’s August 20, 1979 notice of action indicate that the Commission considered a number of factors besides the dollar amount involved in Petri’s offense in reaching its decision. That decision has a rational basis and will not be disturbed by this Court. See Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir. 1976). Several other points deserve mention. Petri alleges in a general way" }, { "docid": "4162418", "title": "", "text": "consider the seriousness of the offense, as indicated by the nature and circumstances surrounding the crime, and the history and characteristics of the prisoner. An examination of the offense severity guidelines in 28 C.F.R. § 2.20 reveals them to be in harmony with this statutory scheme. The guidelines do not create hard and fast boundaries between classes of offenses. Solomon, supra, 676 F.2d at 287. The Act specifically allows the Commission to go outside the guidelines for “good cause,” 18 U.S.C. § 4206(c), and this Court has indicated that it must be flexible when circumstances so require. Stroud, supra, 668 F.2d at 847. Furthermore, the classification system is not irrational as petitioner contends. For example, a “Low” severity ranking includes gambling and cigarette law violations. “Moderate” includes property offenses and some drug violations. “Very High” encompasses property offenses involving greater amounts of money and drug offenses involving more dangerous drugs in greater quantities. The “Greatest I” and “Greatest II” classifications are similar, except that the latter contemplates offenses which place innocent persons in an unreasonable risk of harm, such as murder, any aggravated felony, aircraft hijacking, espionage, and kidnapping for ransom or terrorism. These classifications, like substantive criminal law, reveal a regard for human safety and a belief that stealing larger amounts of property and dealing in greater amounts of drugs should be treated more severely. It is not for this Court to repudiate such a rationale simply because we would have arranged the offenses in a different manner: “In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” City of New Orleans v. Dukes, 427 U.S. 297, 304, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976). See also National Organization for Reform of Marijuana Laws v. Bell, 488 F.Supp. 123, 134-38 (D.C.1980). Accordingly, we conclude that the parole release guidelines do not violate petitioner’s right to equal protection under the Fifth Amendment. II. INTERIM PAROLE HEARING Petitioner argues that the Commission improperly calculated the date of" }, { "docid": "4095989", "title": "", "text": "of more than 45 months to be served before release for cases with good institutional program performance and adjustment. Board guidelines for greatest severity eases do not specify a maximum limit. Therefore, the decision in your case has been based in part upon a comparison of the relative severity of your offense behavior with offense behavior examples listed in the very high severity category. It is this ruling that Petitioner seeks judicial review of in this action. In his brief filed shortly after his petition, the Petitioner through his counsel lists three (3) issues for review. “A) Whether the decision of the parole board was arbitrary and capricious in finding Petitioner’s offense ‘included kidnapping’ contrary to the government’s own ‘official version’. “B) Whether the decision of the National Appellate Board raising for the first time such allegations that his alleged offense ‘involved kidnapping’ and ‘auto theft’ without permitting Petitioner reasonable opportunity to contradict and to rebut these allegations has the effect of depriving Petitioner of due process of law. “C) Whether the decision of the National Appellate Board, upon the facts of this case, render the use of the (a)(2) sentence by the trial court meaningless as such is applied to Petitioner.” A Petitioner does not claim that the reasons given him for denial of parole were in themselves inadequate. Cf. King v. United States, 492 F.2d 1337 (7th Cir. 1974). Instead, he claims that the parole board erred in classifying his offense as “highest, severity” because “the offense included kidnapping”. In support of this claim, Petitioner alleges that he personally was never charged with nor convicted of the offense of kidnapping, and that he personally did not participate in a kidnapping. He does not deny that a kidnapping did in fact take place in the course of the bank robbery in which he participated and, indeed, was the leader. The question is whether the parole board was justified in considering the circumstances surrounding the bank robbery to support its conclusion that the offense did indeed “involve kidnapping”. In this regard, the board is vested with a great amount of" }, { "docid": "6786654", "title": "", "text": "based on the individual circumstances of the prisoner’s case clearly falls within the discretion of the Parole Commission. Brown v. Lundgren, 528 F.2d 1050 (CA5 1976). On very similar facts the court upheld the action of the Parole Board in Bistram v. U. S. Parole Board, 535 F.2d 329, 330 (CA5 1976): “Appellant, represented by counsel, was convicted on his plea of guilty of attempted bank robbery with a dangerous weapon, 18 U.S.C.A. § 2113(d). He was sentenced to 25 years on October 30, 1967. Appellant states that under his plea bargain, the court dismissed a kidnapping count, based on his taking of a hostage. Appellant complains because the Parole Board has classified his offense as of ‘greatest’ severity. He contends this is error because he was convicted only of attempted armed robbery, rated ‘very high’ severity, and the kidnapping charge was dismissed. As the district court’s order well demonstrates, 28 C.F.R. § 2.20 (1975) authorizes the Board to modify an offense rating if there were mitigating or aggravating circumstances. Obviously there were aggravating circumstances in appellant’s case. It seems clear that the Parole Board has followed its own guidelines and has not acted arbitrarily in appellant’s case.” In Manos v. U. S. Board of Parole, Washington, D.C., 399 F.Supp. 1103, 1105 (M.D. Pa.1975) the court also held that the Board could properly consider dismissed counts of an Indictment in classifying the severity of the prisoner’s offense stating: “Consideration of an alleged offense violates no constitutional right of the prisoner.” Again in treating a similar question in a case in which a prisoner had plead guilty to one of five counts of an Indictment and the remaining four had been dismissed on the government’s motion, the court stated: “Concerning the second point, i. e. whether the Parole Board can consider the circumstances of the prisoner’s offense behavior as described in his presentence report, this court has uniformly held that a sentencing judge has wide latitude in taking into consideration all matters bearing upon the personal history and behavior of the convicted accused, and this is by no means confined to" }, { "docid": "16658248", "title": "", "text": "from the Parole Commission’s decision. Upon the recommendation of a magistrate, the district court denied relief. Briggs then brought this appeal, raising essentially the same issues he raised below: 1) that the Parole Commission erred in finding his offense severity to be “Greatest I” rather than “High Severity,” arguing that if it were so classified, he would be entitled to be released at the end of 20 months; and 2) that even if his conduct justifies a finding of “Greatest I,” the Parole Commission deviated from its guidelines without stating its reasons for doing so as required by section 4206. In reviewing the Parole Commission’s decision, we must affirm unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). The Parole Commission rated Briggs’ conduct at “Greatest I” severity based on his participation in a conspiracy to commit arson and the kidnapping of a security guard. The parole guidelines then applicable provided that either of the following acts constituted a “Greatest I” offense: Arson or explosive detonation [involving potential risk of physical injury to person^) (e.g., premises occupied or likely to be occupied) — no serious injury occurred]*** Kidnapping [other than listed in Greatest II; limited duration; and no harm to victim (e.g. kidnapping the driver of a truck during a highjacking, driving to a secluded location, and releasing victim unharmed) ]. 28 C.F.R. § 2.20 (1982). Briggs contends that the arson scheme did not involve a potential risk of physical injury to anyone. He and his co-participants planned to burn the building at night; it was a business establishment, not a residence; and the only person on the premises was the security guard, and they removed him from the building. While this action may have thereby removed the risk of physical injury, abducting the security guard at gunpoint and handcuffing him to a tree clearly meets the kidnapping description for purposes of the guidelines. Briggs complains that the Parole Commission should not have considered the guard’s abduction because he was never charged with kidnapping or conspiracy to kidnap. The" }, { "docid": "11637871", "title": "", "text": "for parole after serving 20 months, or one-third of his five year sentence. Alternatively, he argued that he should be released after serving 24 to 32 months, the recommended sentence in the guidelines. The District Court referred the case to a magistrate who recommended dismissal of his claims. The magistrate’s recommendation was adopted by the District Court. From the dismissal of his petition by the District Court, Stroud appeals. II. The Commission is vested with authority to determine the time of release for a prisoner, with certain limitations. 18 U.S.C. § 4201 et seq.; United States v. Addonizio, 442 U.S. 178, 188, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805, 813 (1979). That decision will not be reversed by a federal court absent “flagrant, unwarranted, or unauthorized action” by the Commission. Page v. United States Parole Commission, 651 F.2d 1083, 1085 (5th Cir. 1981); United States v. Norton, 539 F.2d 1082, 1083 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). So long as there aré no violations of any required due process protection and the Commission has acted within its authority, we will not usurp the Commission’s position as established in the statutory scheme enacted by Congress. Stroud’s first contention is that the reasons for denying parole provided by the Commission are insufficient, being vague, ambiguous, and not in accordance with the statutory obligation that the Commission “state with particularity” its reasons for denying parole. 18 U.S.C. § 4206(b). We find this argument without merit. The panel’s statement included the offense rating and salient factor score, as well as those factors which led the panel to arrive at a determination outside the guidelines. Specifically, the statement indicates that the panel considered Stroud a poorer risk than indicated by his salient factor score due to a pattern of criminal convictions, many involving fraudulent behavior, the type of behavior evident in this most recent offense. The Commission satisfied the statutory requirement concerning decisions outside the guidelines that “the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the" }, { "docid": "4162413", "title": "", "text": "in vehicles against their will through the use of firearms and physical force. Petitioner maintained before the Commission that his abduction of bank officials constituted illegal confinement rather than kidnapping. Nevertheless, the Commission ranked his offense behavior as “Greatest II severity because it involved the kidnapping of bank officials or their family members, physical force, threats of violence and use of firearms.” Petitioner insists that the Commission cannot classify his offense behavior as “kidnapping” since he was never charged with kidnapping and since it was never established that his conduct would violate the elements of kidnapping as set out in 18 U.S.C. § 1201(a)(1). See also United States v. McBryar, 553 F.2d 433 (5th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 136 (1977). This Court cannot disturb a decision by the Commission setting the time for parole release absent a showing that the action is “flagrant, unwarranted, or unauthorized.” Page v. United States Parole Commission, 651 F.2d 1083, 1085 (5th Cir. 1981); United States v. Norton, 539 F.2d 1082, 1083 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). So long as due process requirements are observed and the Commission has acted within its statutory authority, we will not usurp the Commission’s position as established in the statutory scheme enacted by Congress. Stroud, supra, 668 F.2d at 846. We believe that it was within the Parole Commission’s discretion to place petitioner’s offense behavior within the “Greatest II Kidnapping” category under 28 C.F.R. § 2.20. Kidnapping is “Greatest II” when it involves kidnapping “for ransom or terrorism; as hostage; or harm to victim.” Kidnapping is “Greatest I” when it involves kidnapping “other than listed in Greatest II; limited duration; no harm to victim (e.g., kidnapping the driver of a truck during a hijacking, driving him to a secluded location, and releasing victim unharmed).” Id. Petitioner’s conduct appears to belong in the “Greatest II” category for it involved forcible abduction and bank extortion, which is similar to kidnapping for ransom. Moreover, contrary to petitioner’s assertions, the Parole Commission need not limit its" }, { "docid": "4162414", "title": "", "text": "Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). So long as due process requirements are observed and the Commission has acted within its statutory authority, we will not usurp the Commission’s position as established in the statutory scheme enacted by Congress. Stroud, supra, 668 F.2d at 846. We believe that it was within the Parole Commission’s discretion to place petitioner’s offense behavior within the “Greatest II Kidnapping” category under 28 C.F.R. § 2.20. Kidnapping is “Greatest II” when it involves kidnapping “for ransom or terrorism; as hostage; or harm to victim.” Kidnapping is “Greatest I” when it involves kidnapping “other than listed in Greatest II; limited duration; no harm to victim (e.g., kidnapping the driver of a truck during a hijacking, driving him to a secluded location, and releasing victim unharmed).” Id. Petitioner’s conduct appears to belong in the “Greatest II” category for it involved forcible abduction and bank extortion, which is similar to kidnapping for ransom. Moreover, contrary to petitioner’s assertions, the Parole Commission need not limit its consideration of aggravating factors to the offense charged or to possible offenses that might have been charged given the facts available at the time of sentencing. This Court has affirmed repeatedly the right of the Commission to consider any evidence that existed at the time of sentencing that would constitute a mitigating or aggravating circumstance affecting the prisoner’s offense rating. Page, supra, 651 F.2d at 1086; Jackson v. Reese, 608 F.2d 159, 160 (5th Cir. 1979); Payne v. United States, 539 F.2d 443, 444 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1131, 51 L.Ed.2d 554 (1977); Bistram v. United States Parole Board, 535 F.2d 329, 330 (5th Cir. 1976); Brown v. Lundgren, 528 F.2d 1050, 1055 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). Under these circumstances, the Parole Commission’s characterization of petitioner’s offense behavior as “Greatest II Kidnapping” can hardly be viewed as “flagrant, unwarranted, or unauthorized” so as to require reversal in federal court. See Stroud, supra, 668 F.2d at 846; Page, supra, 651" }, { "docid": "12295121", "title": "", "text": "Maddox argued that the Parole Commission erroneously relied on the sentencing judge’s comments in an AO-235 form to support its decision because the judge’s comments are unsubstantiated hearsay. ■ II. Congress has given the Parole Commission absolute discretion concerning matters of parole. Congress has dictated that the Parole Commission may use all relevant, available information in making, parole determinations. The regulations provide, “The Commission may take into account any substantial information available to it in establishing the prisoner’s offense severity rating, salient factor score, and any aggravating or mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond.” 18 U.S.C. § 4207 contains a nonexhaustive list of information that the Commission may consider in making parole determinations. As with sentencing courts, the only constraints on the information that may be considered by the Parole Commission are constitutional. Specifically, the Commission may consider dismissed counts of an indictment, hearsay evidence, and allegations of criminal activity for which the prisoner has not even been charged. The regulations provide, “If the prisoner disputes the accuracy of the information presented, the Commission shall resolve such dispute by the preponderance of the evidence standard.” However, “it is not the function of the courts to review the discretion of the Board in the denial of application for parole or to review the credibility of reports and information received by the Board in making its determination.” Thus, as this court has observed, [t]his Court cannot disturb a decision by the Commission setting the time for parole release absent a showing that the action is “flagrant, unwarranted, or unauthorized.” Page v. United States Parole Commission, 651 F.2d 1083, 1085 (5th Cir.1981); United States v. Norton, 539 F.2d 1082, 1083 (5th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). So long as due process requirements are observed and the Commission has acted within its statutory authority, we will not usurp the Commission’s position as established in the statutory scheme enacted by Congress. Although the Commission’s decisions must have a factual basis, judicial review is limited to whether there" }, { "docid": "16658249", "title": "", "text": "explosive detonation [involving potential risk of physical injury to person^) (e.g., premises occupied or likely to be occupied) — no serious injury occurred]*** Kidnapping [other than listed in Greatest II; limited duration; and no harm to victim (e.g. kidnapping the driver of a truck during a highjacking, driving to a secluded location, and releasing victim unharmed) ]. 28 C.F.R. § 2.20 (1982). Briggs contends that the arson scheme did not involve a potential risk of physical injury to anyone. He and his co-participants planned to burn the building at night; it was a business establishment, not a residence; and the only person on the premises was the security guard, and they removed him from the building. While this action may have thereby removed the risk of physical injury, abducting the security guard at gunpoint and handcuffing him to a tree clearly meets the kidnapping description for purposes of the guidelines. Briggs complains that the Parole Commission should not have considered the guard’s abduction because he was never charged with kidnapping or conspiracy to kidnap. The Parole Commission has broad discretion to consider the overall circumstances of the prisoner’s offense behavior. Several courts have held that the Parole Commission may consider unadjudicated charges, charges in dismissed counts of an indictment, or even evidence of crimes of which the accused has been acquitted. See Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976); United States v. Hendrix, 505 F.2d 1233, 1235 (2d Cir.1974); United States v. Needles, 472 F.2d 652, 655 (2d Cir.1973); United States v. Sweig, 454 F.2d 181, 183-184 (2d Cir.1972). Moreover, 18 U.S.C. § 4207 explicitly provides that the Parole Commission may utilize information in presentence investigation reports. The narrative information in Briggs’ report detailed his participation in planning the arson, and the abduction of the security guard at gunpoint was a part of this plan. It was thus a reasonable exercise of discretion for the Parole Commission to characterize Briggs’ offense severity as “Greatest I” in light of this conduct. Briggs’ second argument — that even if an offense severity rating of “Greatest I”" }, { "docid": "12295122", "title": "", "text": "disputes the accuracy of the information presented, the Commission shall resolve such dispute by the preponderance of the evidence standard.” However, “it is not the function of the courts to review the discretion of the Board in the denial of application for parole or to review the credibility of reports and information received by the Board in making its determination.” Thus, as this court has observed, [t]his Court cannot disturb a decision by the Commission setting the time for parole release absent a showing that the action is “flagrant, unwarranted, or unauthorized.” Page v. United States Parole Commission, 651 F.2d 1083, 1085 (5th Cir.1981); United States v. Norton, 539 F.2d 1082, 1083 (5th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). So long as due process requirements are observed and the Commission has acted within its statutory authority, we will not usurp the Commission’s position as established in the statutory scheme enacted by Congress. Although the Commission’s decisions must have a factual basis, judicial review is limited to whether there is “some evidence” in the record to support the Commission’s decision. III. Maddox contends that his category six offense-severity rating was unwarranted. A marijuana offense is properly characterized as category six if the prisoner had a nonperipheral role in an offense that involved 20,000 pounds or more of marijuana. If the offense involved less than 20,000 (but more than 2,000) pounds of marijuana or the prisoner had only a peripheral role, his offense behavior is properly rated as category five. Maddox contends that his offense-severity rating should have been category five because his federal conviction involved only 11,000 pounds of marijuana. Maddox’s offense behavior was rated as category six because the Parole Commission combined the 11,000 pounds of marijuana from the federal conviction with the 85,000 pounds of marijuana from the state conviction. A state offense may be used to establish a prisoner's offense-severity rating if the state offense is sufficiently related to the federal offense in time or nature. Maddox’s federal offense involved conduct that took place between May 1, 1980, and February 2," } ]

[ { "docid": "19322781", "title": "", "text": "to the claimed exemption of the residence. No determination can be made questioning whether Debtor is lawfully entitled to the exemption under 11 U.S.C. § 522(b) because under 11 U.S.C. § 522(£) no timely objection was made. In this District, Bankruptcy Judge Wed-off and District Judge Gettleman have held in separate recent cases that allowing a debtor to avoid a lien on property deemed exempt only because the time limit for objecting had expired under 11 U.S.C. § 522(i) would ignore the requirement of 11 U.S.C. § 522(f) that the debtor must legally be entitled to the exemption under 11 U.S.C. § 522(b). Both judges reasoned that the lien avoidance provision of § 522(f) applies only when the debtor would lawfully have been entitled to the exemption under state law and 11 U.S.C. § 522(b) regardless whether timely objection is filed. In re Chinosorn, 243 B.R. 688, 698-99 (Bankr.N.D.Ill.2000); In re Felber, 1999 WL 350832, *4 (N.D.Ill.1999). The undersigned Judge has previously come to a contrary view in In re Youngblood, 212 B.R. 593, 597-98 (Bankr.N.D.Ill.1997) and In re Andres, 212 B.R. 306, 309-10 (Bankr.N.D.Ill.1997), as has Bankruptcy Judge Squires, in In re Vasquez, 205 B.R. 136, 138 (Bankr.N.D.Ill.1997). It was held in those decision under § 522(1) that once the objection deadline has past, the claimed exemption is incontestable on any grounds. Opinions holding that a debtor must be lawfully entitled to an exemption under 11 U.S.C. § 522(b) even in cases where no timely objections to exemptions were filed fly in the face of Supreme Court and Seventh Circuit rulings in Taylor, Salzer and Kazi. In the Supreme Court opinion, the debtor did not have a statutory right to exempt more than a small portion of the proceeds from a lawsuit, yet he claimed the full amount as exempt. 503 U.S. at 642, 112 S.Ct. at 1647. The trustee had opportunity to object to the claimed exemption but failed to do so. Id. at 642,112 S.Ct. at 1647-48. The opinion held that the trustee’s failure to object forever barred him from doing so. The Seventh Circuit opinion ruled" } ]

[ { "docid": "19322782", "title": "", "text": "(Bankr.N.D.Ill.1997) and In re Andres, 212 B.R. 306, 309-10 (Bankr.N.D.Ill.1997), as has Bankruptcy Judge Squires, in In re Vasquez, 205 B.R. 136, 138 (Bankr.N.D.Ill.1997). It was held in those decision under § 522(1) that once the objection deadline has past, the claimed exemption is incontestable on any grounds. Opinions holding that a debtor must be lawfully entitled to an exemption under 11 U.S.C. § 522(b) even in cases where no timely objections to exemptions were filed fly in the face of Supreme Court and Seventh Circuit rulings in Taylor, Salzer and Kazi. In the Supreme Court opinion, the debtor did not have a statutory right to exempt more than a small portion of the proceeds from a lawsuit, yet he claimed the full amount as exempt. 503 U.S. at 642, 112 S.Ct. at 1647. The trustee had opportunity to object to the claimed exemption but failed to do so. Id. at 642,112 S.Ct. at 1647-48. The opinion held that the trustee’s failure to object forever barred him from doing so. The Seventh Circuit opinion ruled similarly in Salzer, and noted that failure to object within the 30 days provided by Rule 4003(b) waives the right to object. Salzer, 52 F.3d at 711. In Kazi, it was expressly noted that the 30-day time limit must be interpreted literally. Kazi, 985 F.2d at 322. That opinion stated, “It would be inconsistent with Taylor’s emphasis on finality to allow objecting parties to raise the issue of the debtor’s actual notice of opposition to claimed exemption after the 30-day period has run.” Id. As stated, 11 U.S.C. § 522(i) provides that the debtor “shall file a list of property that the debtor claims as exempt under subsection (B) of this section,” and if there are no timely objections, the property is exempt. To hold that this incontestably exempt property remains subject to a lien which impairs the exemption and gobbles up the property would contradict what the Seventh Circuit and the Supreme Court have clearly mandated. Thus, the second prong of 11 U.S.C. § 522(f)(1), that the debtor claim an exemption to which he" }, { "docid": "17916626", "title": "", "text": "its substantive merit. However, in order to serve as the basis for an avoidance of lien under § 522(f)(1)(A), a claimed exemption must not only be valid, it must be one to which the debtor would have been entitled “under subsection (b).” Subsection 522(b) — as discussed below — sets forth the substantive grounds under which an exemption may be claimed. The mere fact that a debtor has obtained an exemption by default under § 522® does not establish the debtor’s substantive entitlement to an exemption under § 522(b). Thus, a creditor’s failure to object to a claimed exemption, allowing the exemption to go into effect by default, does not prevent the creditor from arguing — in the context of a motion to avoid lien under § 522(f)(1)(A)— that the debtor lacks a substantive entitlement to the exemption under § 522(b). A majority of the decisions considering the issue have so held¡ See Morgan v. FDIC (In re Morgan), 149 B.R. 147, 151 (9th Cir. BAP 1993); In re Franklin, 210 B.R. 560, 564-66 (Bankr.N.D.Ill.1997); In re Streeper, 158 B.R. 783, 786 (Bankr.N.D.Iowa 1993); In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992), aff'd, 24 F.3d 247 (9th Cir.1994); In re Montgomery, 80 B.R. 385, 389 (Bankr.W.D.Tex.1987) (“It is to Section 522(b), not to Section 522®, that the court’s attention must be directed in Section 522(f) actions.”). In requiring the debtor to establish a substantive right to an exemption under § 522(b) (and allowing a creditor to assert that such a right has not been established), these decisions properly apply the plain language of § 522(f)(1)(A). See Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808. 519 U.S. 337, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (“[I]nquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ”) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989)). However, even if there were any ambiguity in the language of § 522(f)(1)(A), it would have to be resolved in" }, { "docid": "14123711", "title": "", "text": "impairs an asserted exemption not contested here but which he is not entitled to under the changed Illinois law. Several bankruptcy courts have held that the 30-day requirement under Rule 4003 as applied to Code § 522(1) does not apply to lien avoidance motions. In re Moe, 179 B.R. 654, 655 (Bankr.D.Mont.1995) (collecting cases). One requirement under § 522(f)(2) for avoiding a judicial hen is that the debtor be entitled to the exemption under § 522(b). An exemption not objected to becomes incontestable under § 522(1). Some courts therefore reason that a hen would not be avoidable under § 522(f)(2). Id. (citing In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992), aff'd, 153 B.R. 601 (9th Cir. BAP 1993), aff'd, 24 F.3d 247 (9th Cir.1994); In re Morgan, 149 B.R. 147, 151-52 (9th Cir. BAB 1993)). Bankruptcy Judge Wedoff in this District recently analyzed the same issue and determined that to allow a debtor to avoid a hen on property deemed incontestably exempt solely pursuant to § 522® would ignore the literal requirement of § 522(f) that lien avoidance applies only to an exemption the debtor would have been entitled to under § 522(b). Franklin, Brown, Ramirez, 210 B.R. at 564. Since Illinois now forbids the exemption for wages under § 522(b), this opinion reasoned that the § 522(1) exemption could not warrant avoidance. Bankruptcy Judge Squires, also in this District, came to a contrary view in Vasquez, 205 B.R. at 138. However well reasoned Judge WedofPs decision was, to hold likewise in this case would be to fly in the face of the earlier cited Supreme Court and Seventh Circuit rulings and would require the anomalous result that a party enjoying a § 522(1) exemption would have no remedy to protect that exemption under § 522(f). The debtor in the Supreme Court’s Taylor decision did not have a legal right to exempt more than a small portion of proceeds from a discrimination suit, yet he claimed the full amount as exempt. 503 U.S. at 642, 112 S.Ct. at 1647. The trustee had opportunity to object to the claimed exemption but" }, { "docid": "17916630", "title": "", "text": "proceeding under § 522(f)(1)(A) only after it is too late for them to object to the exemptibility of the liened property. Other decisions raising due process concerns in connection with the interpretation of § 522(f)(1)(A) include Morgan v. FDIC (In re Morgan), 149 B.R. 147, 152 (9th Cir. BAP 1993); In re Smith, 119 B.R. 757, 760 (Bankr.E.D.Cal.1990); In re Frazier, 104 B.R. 255, 259 (Bankr.N.D.Cal.1989); and In re Maylin, 155 B.R. 605, 611 (Bankr.D.Me.1993). These due process concerns are eliminated if § 522(f)(1)(A) is interpreted to allow a lienholder to challenge a debtor’s substantive entitlement to an exemption after the lienholder receives notice of the motion for lien avoidance. There are decisions holding to the contrary — that the requirements of § 522(f)(1)(A) are met by a substantively groundless exemption that is only effective, under § 522(0, because of a lack of objection. See, e.g., Great Southern Co. v. Allard, 202 B.R. 938, 941 (N.D.Ill.1996); In re Andres, 212 B.R. 306, 309-10 (Bankr.N.D.Ill.1997); In re Youngblood, 212 B.R. 593, 598 (Bankr.N.D.Ill.1997). These decisions state that their conclusions are mandated by the Supreme Court’s opinion in Taylor. However, Taylor interpreted only § 522(0 and Fed. R. Bankr.P. 4003(b) — as requiring timely objection in order to avoid exemptions by default. 503 U.S. at 643, 112 S.Ct. at 1648. Taylor did not consider lien avoidance under § 522(f), and the opinion hardly contradicts the possibility that a debtor may have an exemption by default under § 522(0, without having a substantive right to the exemption under § 522(b) — that, indeed, is what Taylor holds. And, for the reasons set forth above, it is the substantive right to an exemption, under § 522(b), that is required by § 522(f)(1)(A) for lien avoidance. Accordingly, in order to prevail on the pending motion, Chinosorn has the burden of establishing not merely that he has an exemption (by default) in his interest in his home, but that he has a substantive right to that exemption under § 522(b). Fleet is not foreclosed from arguing that Chinosorn has failed to meet this burden. Entitlement to" }, { "docid": "12811259", "title": "", "text": "his withheld wages, he listed those wages as exempt and the amount claimed as exempt exceeded the amount of wages withheld. Pursuant to 11 U.S.C. § 522(i), if no party in interest objects to a claimed exemption, such property is incontestably exempt. Fed. R. Bankr.P. 4003 requires the trustee or any creditor to file objections within 30 days after the meeting of creditors. No such objections were filed in this case. The Supreme Court and a panel of the Seventh Circuit have held that, even where a debtor has no colorable basis for claiming an exemption, once the 30-day period has expired, the property is considered exempt. Taylor v. Freeland & Kronz, 503 U.S. 638, 643-44, 112 S.Ct. 1644, 1648-49, 118 L.Ed.2d 280 (1992); Matter of Kazi, 985 F.2d 318 (7th Cir.1993). Thus, the pertinent issue must be refocused: Can this Debtor avoid the lien on his wages even though under Illinois law he is not entitled to the exemption? Several bankruptcy courts have held that the 30-day exempt-by-default application of § 522(1) and Rule 4003 does not apply to hen avoidance motions. In re Moe, 179 B.R. 654, 655 (Bankr.D.Mont.1995) (collecting cases). The second § 522(f)(1) requirement for avoiding a judicial hen is that the debtor be entitled to the exemption under § 522(b). An exemption by default is pursuant to § 522(1). The hen has therefore been held not to be avoidable under § 522(f)(1). Id. (citing In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992), aff'd, 153 B.R. 601 (9th Cir. BAP 1993), aff'd, 24 F.3d 247 (9th Cir.1994); In re Morgan, 149 B.R. 147, 151-52 (9th Cir. BAP 1993)). Bankruptcy Judge Wedoff of this District recently analyzed the same issue and determined that to allow a debtor to avoid a hen on property deemed exempt solely pursuant to § 522(Z) would ignore one requirement of § 522(f). He reasoned that the hen avoidance provision only apphes to an exception the debtor would have been entitled to under § 522(b). Franklin, Brown, Ramirez, 210 B.R. at 564. Bankruptcy Judge Squires, also in this District, came to a contrary" }, { "docid": "15728225", "title": "", "text": "1375, 1378 (7th Cir.1994) A. Timeliness of Karr’s Objection. The debtor cites Taylor v. Freeland & Kronz, 503 U.S. 638, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992) and Matter of Kazi, 985 F.2d 318 (7th Cir.1993) for the proposition that because Karr failed to timely object to the debtor’s claimed exemption, the Bankruptcy Court should not have even considered Karr’s defense to the debtor’s § 522(f) motion for lien avoidance. In Taylor, relying on § 522(1) , the Supreme Court held that a bankruptcy trustee could not contest the validity of a claimed exemption after the expiration of the 30-day period under Fed.R.Bank.P. 4003(b) , even though the debtor had no colorable basis for claiming the exemption. Taylor, 503 U.S. at 643-44, 112 S.Ct. 1644. On similar facts, in Matter of Kazi, the Seventh Circuit also held that a bankruptcy trustee could not contest the validity of a claimed exemption after expiration of the 30-day period. Matter of Kazi, 985 F.2d at 322. In this case, Karr did not timely file any objection to the claimed exemption, nor has he provided any excuse for failing to do so. However, there is a split of authority on whether the failure to timely object to a claimed exemption precludes a hen creditor from asserting an objection to the exemption in defense of a lien avoidance motion. Compare In re Chinosorn, 248 B.R. 324 (N.D.Ill.2000) (holding that creditor’s failure to timely object to an exemption precluded the creditor from contesting the validity of the exemption in order to defend a lien avoidance motion) to In re Morgan, 149 B.R. 147 (9th Cir. BAP 1993) (holding that an exemption arising under § 522(i) does not arise under 522(b) and, thus, could not support hen avoidance under § 522(f)) and In re Thompson, 263 B.R. 134 (Bankr.W.D.Okla.2001) (holding that secured creditor’s failure to timely object did not preclude it from litigating the merits of the exemption in the context of defending a hen avoidance motion); In re Maylin, 155 B.R. 605 (Bankr.D.Me.1993) (same). The Seventh Circuit has not addressed this issue. This Court agrees with" }, { "docid": "19322770", "title": "", "text": "debtor has an interest in the property. In re Andres, 212 B.R. 306, 308 (Bankr.N.D.Ill.1997) See also In re Youngblood, 212 B.R. 593, 595 (Bankr.N.D.Ill.1997). A Judicial Lien Arises Against Entireties Property Zafar Sheikh obtained a judicial lien on Debtor’s property. A judicial lien is one “obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.” 11 U.S.C. § 101(36). A lien filed and recorded with respect to property held in tenancy by the entirety by a debtor and his non-debtor spouse fits this definition. See In re Allard, 196 B.R. 402, 407 (Bankr.N.D.Ill.1996), aff'd sub nom. Great Southern Co. v. Allard, 202 B.R. 938 (N.D.Ill.1996). But see In re Chinosorn, 243 B.R. 688, 693-96 (Bankr.N.D.Ill.2000) (showing that Illinois law is unclear on the issue of whether a recorded judgment against a single tenant gives rise to a lien on property held by two people as tenants by the entirety). According to Bankruptcy Judge Wedoff, in Chinosom, although the question is debatable, the recording of a judgment against only one tenant holding property as tenants by the entirety may not impose a lien on the property because, like the homestead exemption which provides that homestead property is exempt from judgment, property held in tenancy by the entirety cannot be sold to satisfy a judgment against only one of the spouses. Chinosom, 243 B.R. at 694-95. Illinois law provides with respect to homestead property that judgment liens never come into existence against the homestead interest. Id. at 694. However, as Judge Wed-off acknowledged, the homestead cases may not be applicable to the issue of a judgment lien on entireties property because a judgment against one tenant holding property as tenants by the entirety may give rise to a lien against that individual tenant’s contingent future interests in the property. Id. at 695. Thus, at a minimum, under that theory Sheikh obtained a lien against Debtor’s contingent future interests in his residence. Additionally, while Illinois law has established that judgment liens never come into existence with respect to homestead property, there is no similar statutory provision for property held" }, { "docid": "14123706", "title": "", "text": "(Bankr.N.D.Ill.1997). “Courts are not required to grant a request for relief simply because the request is unopposed.” Id. (collecting cases). Thus, it is appropriate to review Debtor’s motion despite the lack of objection from Associates or any party in interest. DISCUSSION Debtor scheduled $1,000.00 of the withheld wages as exempt pursuant to 735 ILCS § 5/12 — 1001(b) and now wishes to avoid the wage deduction lien. Liens on exempt property are avoided pursuant to 11 U.S.C. § 522(f)(1)(A) which provides that a debtor may avoid the fixing of a judicial lien “on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled.” Title 11 U.S.C. § 522(f)(1)(A); see also, In re Vasquez, 205 B.R. 136, 137 (Bankr.N.D.Ill.1997). Thus, there are four requirements to avoid a judicial lien: “(1) the lien the debtor seeks to avoid is a judicial lien; (2) the debtor claims an exemption in the property to which the debtor is entitled under § 522(b); (3) the creditor’s lien impairs the debtor’s exemption; and (4) the debtor has an interest in the property.” Johnson v. Ford Motor Credit Co. (In re Johnson), 53 B.R. 919, 922 (Bankr.N.D.Ill.1985), motion for reconsideration denied, 57 B.R. 635 (Bahkr.N.D.Ill.1986). A garnishment or wage deduction lien is a judicial lien. A judicial lien is a “lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.” 11 U.S.C. § 101(36). A garnishment or wage deduction lien is such a creature. See Vasquez, 205 B.R. at 138; Franklin, Brown, Ramirez, 210 B.R. at 563; In re Waltjen, 150 B.R. 419, 425 (Bankr.N.D.Ill.1993). The lien involved here covers Debt- or’s wages as to which Debtor claims an exemption. The issue presented here is whether Debtor is entitled to that exemption under Bankruptcy Code § 522 which allows a debtor to exempt certain property from property of the bankruptcy estate. Illinois law requires a resident-debtor to use state authorized exemptions. 735 ILCS 12-1201; In re Garcia, 149 B.R. 530, 533 (Bankr.N.D.Ill.), aff'd, 155 B.R. 173 (N.D.Ill.1993). Under the" }, { "docid": "9483112", "title": "", "text": "to timely object to debtor’s exemptions may later challenge the validity of the claimed exemptions in defending a lien avoidance motion under Section 522(f). A majority of those cases hold that an exemption obtained by default cannot be attacked in defending a lien avoidance motion under Section 522(f). For example in In re Youngblood, 212 B.R. 593 (Bankr.N.D.Ill.1997), the debtor claimed as exempt withheld wages, which were subject to a creditor’s judicial lien. The creditor failed to timely object, even though the exemption had no colorable basis under Illinois exemption law. The court allowed the lien avoidance over the lienholder’s proffered attack on the validity of the exemptions, stating: [T]o hold [otherwise] in this case would be to fly in the face of the Supreme Court and the Seventh Circuit rulings in Taylor and [In Matter of] Kazi[, 985 F.2d 318 (7th Cir.1993)]. The debtor in the Supreme Court’s Taylor opinion did not have a right to exempt more than a small portion of proceeds from a discrimination suit, yet he claimed the full amount as exempt .... The trustee there had an opportunity to object to the claimed exemption but failed to do so .... The opinion held that the trustee’s failure to object forever barred him from doing so. As stated, § 522(1) expressly provides that the debtor ‘shall file a list of property that the debtor claims as exempt under subsection (B) of this section,’ and if there are no timely objections, the property is exempt. To hold that this incontestably exempt property remains subject to a lien which impairs the exemption and gobbles up the withheld money would contradict that which the Seventh Circuit and the Supreme Court have clearly mandated. As noted in Kazi, it would be inconsistent with Taylor’s emphasis on finality to allow an exemption under § 522(1), but then moot that exemption. In re Youngblood, 212 B.R. at 598. See also In re Mukhi, 246 B.R. 859 (Bankr.N.D.Ill.2000), in which the homestead exemption claimed exceeded the statutory limits under Illinois law, but the creditor failed to timely object. The court stated that" }, { "docid": "10343741", "title": "", "text": "list of the property claimed as exempt under section 522(b). 11 U.S.C. § 522(i); Fed. R. Bankr.P. 4003(a). Once a debtor claims property as exempt, any party in interest may object to the claimed exemption. The objecting party has the burden of proving that the exemption is not properly claimed. Fed. R. Bankr.P. 4003(c). Absent a timely objection, property claimed as exempt by the debtor is exempt. 11 U.S.C. § 522(l). Taylor v. Freeland & Kronz, 503 U.S. 638, 643-44, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992); Hyman, 967 F.2d at 1319 n. 6. Property remaining in the estate after allowance of the debtor’s exemptions is subject to administration by the trustee for the benefit of creditors. B. Debtor’s Duty to File Schedules and Statements Section 521(1) of the Code requires the debtor to file “a schedule of assets and liabilities, a schedule of current income and current expenditures, and a statement of the debtor’s financial affairs.” 11 U.S.C. § 521(1). Section 521(3) further requires a debtor to “cooperate with the trustee as necessary to enable the trustee to perform the trustee’s duties” under the Code. 11 U.S.C. § 521(3). Debtors have an absolute duty to file complete and accurate schedules. See Cusano v. Klein, 264 F.3d 936, 946 (9th Cir.2001); In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992), aff’d, 153 B.R. 601 (9th Cir. BAP 1993), aff’d, 24 F.3d 247 (9th Cir.1994). Full and comprehensive disclosure is critical to the integrity of the bankruptcy process. See, e.g., Heidkamp v. Whitehead (In re Whitehead), 278 B.R. 589, 594 (Bankr.M.D.Fla.2002) (stating that “[t]he veracity of the debtor’s Statement is absolutely essential to the successful administration of the Bankruptcy Code”); In re Bohrer, 266 B.R. 200, 201 (Bankr.N.D.Cal.2001) (opining that “[a] debtor may not adopt a cavalier attitude toward ... the accuracy of his schedules by arguing that they are not precise and correct”); McElroy v. McElroy (In re McElroy), 229 B.R. 483, 488 (Bankr.M.D.Fla.1998) (noting that “[a] debtor’s complete disclosure is essential to the proper administration of the bankruptcy estate”); In re Carter, 205 B.R. 733, 736 (Bankr.E.D.Penn.1996) (observing that “[h]onesty" }, { "docid": "10228663", "title": "", "text": "the ease sub judice, Debtor scheduled Citizens First National Bank as a secured creditor under its judgment lien, and under Schedule C declared the homestead in Wolf Point, Montana, exempt under “MCA § 70-32-104” at a value of claimed exemption in the sum of $40,000.00. Moe therefore contends Debtor now is entitled to the entire $40,000.00 exemption, even though § 70-32-104(2) concededly limits that exemption to $20,000.00. I reject the Debtor’s argument. For various reasons, bankruptcy courts have held that “exemption by default” as is allowed by Taylor does not apply to lien avoidance motions. For example, in the Ninth Circuit, the cases of In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992), aff'd mem., 153 B.R. 601 (9th Cir. BAP 1993), aff'd mem., 24 F.3d 247 (9th Cir.1994), and In re Morgan, 149 B.R. 147, 151-152 (9th Cir. BAP 1993) both concluded that an exemption arising under § 522(Z) does not arise under § 522(b), and thus cannot support lien avoidance under § 522(f). Mohring reasons, “[t]he exemption by default under § 522(i) is not an exemption ‘to which the debtor would have been entitled under subsection (b) of 11 U.S.C. § 522,’ ” 142 B.R. at 394 (citing In re Montgomery, 80 B.R. 385, 388 (Bankr.W.D.Tex.1987) and In re Frazier, 104 B.R. 255, 258 (Bankr.N.D.Cal.1989)). On different grounds, courts such as In re Streeper, 158 B.R. 783 (Bankr.N.D.Iowa 1993) and In re Maylin, 155 B.R. 605 (Bankr.Me.1993) arrive at the same result, even though the Maylin court criticizes, but does not decide, that the holdings in Mohring and Morgan were rejected by Taylor’s majority. Maylin, 155 B.R. at 613, n. 30. In Streeper, the court relies in part on Owen v. Owen, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991), in holding that sections 522(£) and 522(f) serve different functions, so that under 522(f) and Owen v. Owen, 500 U.S. at 314 n. 6, 111 S.Ct. at 1838 n. 6, the “court must ask whether avoiding the judicial hen of Cascade Lumber [a secured creditor] would have entitled the Streepers to the homestead exemption as of the" }, { "docid": "17916629", "title": "", "text": "result in loss of the lien. Yet it is a general requirement of constitutional due process that a lienholder be given actual notice of any proceeding in which its lien may be lost. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 2711, 77 L.Ed.2d 180 (1983) (“[A] mortgagee clearly has a legally protected property interest,” and so is “entitled to notice reasonably calculated to apprise him” of a proceeding that would have the effect of voiding that interest.). Even if a lienholder has general knowledge that lien avoidance is possible, the lienholder is still entitled to notice of the particular proceeding that may result in loss of the lien. See id. at 799, 103 S.Ct. at 2712 (“Personal service or mailed notice is required even though sophisticated creditors have means at their disposal to discover ... whether [lien avoiding] proceedings are ... likely to be initiated.”). It is highly doubtful whether this notice requirement is satisfied by a procedure in which secured creditors are notified of a lien avoidance proceeding under § 522(f)(1)(A) only after it is too late for them to object to the exemptibility of the liened property. Other decisions raising due process concerns in connection with the interpretation of § 522(f)(1)(A) include Morgan v. FDIC (In re Morgan), 149 B.R. 147, 152 (9th Cir. BAP 1993); In re Smith, 119 B.R. 757, 760 (Bankr.E.D.Cal.1990); In re Frazier, 104 B.R. 255, 259 (Bankr.N.D.Cal.1989); and In re Maylin, 155 B.R. 605, 611 (Bankr.D.Me.1993). These due process concerns are eliminated if § 522(f)(1)(A) is interpreted to allow a lienholder to challenge a debtor’s substantive entitlement to an exemption after the lienholder receives notice of the motion for lien avoidance. There are decisions holding to the contrary — that the requirements of § 522(f)(1)(A) are met by a substantively groundless exemption that is only effective, under § 522(0, because of a lack of objection. See, e.g., Great Southern Co. v. Allard, 202 B.R. 938, 941 (N.D.Ill.1996); In re Andres, 212 B.R. 306, 309-10 (Bankr.N.D.Ill.1997); In re Youngblood, 212 B.R. 593, 598 (Bankr.N.D.Ill.1997). These decisions state" }, { "docid": "17916627", "title": "", "text": "In re Streeper, 158 B.R. 783, 786 (Bankr.N.D.Iowa 1993); In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992), aff'd, 24 F.3d 247 (9th Cir.1994); In re Montgomery, 80 B.R. 385, 389 (Bankr.W.D.Tex.1987) (“It is to Section 522(b), not to Section 522®, that the court’s attention must be directed in Section 522(f) actions.”). In requiring the debtor to establish a substantive right to an exemption under § 522(b) (and allowing a creditor to assert that such a right has not been established), these decisions properly apply the plain language of § 522(f)(1)(A). See Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808. 519 U.S. 337, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (“[I]nquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ”) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989)). However, even if there were any ambiguity in the language of § 522(f)(1)(A), it would have to be resolved in favor of allowing a lienholder to challenge the debtor’s substantive right to a claimed exemption. This is because of the well-established principle that ambiguous statutes should be given the interpretation that avoids constitutional difficulties. See International Assn. of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1790, 6 L.Ed.2d 1141 (1961) (“Federal statutes are to be so construed as to avoid serious doubt of their constitutionality.”) If § 522(f)(1)(A) were interpreted to require lien avoidance, based on a substantively groundless exemption, simply because there had been no timely objection to the exemption, serious due process questions would be raised — as this court explained in In re Franklin, 210 B.R. 560, 565 (Bankr.N.D.Ill.1997): Although creditors are given notice of the deadline to file objections to exemptions claimed by the debtor, they are not informed of what property the debtor actually claims as exempt (this could only be found by searching the bankruptcy files), and secured creditors are given no notice that failure to object to a claim of exemption on liened property may" }, { "docid": "12811260", "title": "", "text": "4003 does not apply to hen avoidance motions. In re Moe, 179 B.R. 654, 655 (Bankr.D.Mont.1995) (collecting cases). The second § 522(f)(1) requirement for avoiding a judicial hen is that the debtor be entitled to the exemption under § 522(b). An exemption by default is pursuant to § 522(1). The hen has therefore been held not to be avoidable under § 522(f)(1). Id. (citing In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992), aff'd, 153 B.R. 601 (9th Cir. BAP 1993), aff'd, 24 F.3d 247 (9th Cir.1994); In re Morgan, 149 B.R. 147, 151-52 (9th Cir. BAP 1993)). Bankruptcy Judge Wedoff of this District recently analyzed the same issue and determined that to allow a debtor to avoid a hen on property deemed exempt solely pursuant to § 522(Z) would ignore one requirement of § 522(f). He reasoned that the hen avoidance provision only apphes to an exception the debtor would have been entitled to under § 522(b). Franklin, Brown, Ramirez, 210 B.R. at 564. Bankruptcy Judge Squires, also in this District, came to a contrary view in Vasquez, 205 B.R. at 138. However, well reasoned as Judge Wedoffs decision was, to hold likewise in this case would be to fly in the face of the Supreme Court and the Seventh Circuit rulings Taylor and Kazi. The debtor in the Supreme Court’s Taylor opinion did not have a right to exempt more than a small portion of proceeds from a discrimination suit, yet he claimed the full amount as exempt. 503 U.S. at 642, 112 S.Ct. at 1647. The trustee there had opportunity to object to the claimed exemption but failed to do so. Id. at 642, 112 S.Ct. at 1647-48. The opinion held that the trustee’s failure to object forever barred him from doing so. Id. The Seventh Circuit ruled similarly in Kazi and expressly noted that the 30-day time limit should be interpreted literally. 985 F.2d at 322. “It would be inconsistent with Taylor’s emphasis on finality to allow objecting parties to raise the issue of the debtor’s actual notice of opposition to the claimed exemption after the 30-day" }, { "docid": "19322780", "title": "", "text": "claiming an exemption, once the 30-day period has expired the property is exempt, Taylor v. Freeland & Kronz, 503 U.S. 638, 643-44, 112 S.Ct. 1644, 1648-49, 118 L.Ed.2d 280 (1992), and the Seventh Circuit Court of Appeals has more recently followed that rule. In re Salzer, 52 F.3d 708 (7th Cir.1995), cert. denied, 516 U.S. 1177, 116 S.Ct. 1273 (failure to object within the 30 days provided by Rule 4003(b) waives the right to object); In re Kazi, 985 F.2d 318, 320 (7th Cir.1993). Sheikh protests that the Debtor admitted in his Schedules that he wasn’t even married when he filed in bankruptcy (though Debt- or has claimed that to be a typographical error). Without deciding whether that is a valid objection to the claimed exemption of the entireties property, the issue presented is whether any objection comes too late to be considered. The conclusion must be that Debtor may avoid the lien on his residence regardless of whether he was actually entitled to the exemption under Illinois law when there was no timely objection to the claimed exemption of the residence. No determination can be made questioning whether Debtor is lawfully entitled to the exemption under 11 U.S.C. § 522(b) because under 11 U.S.C. § 522(£) no timely objection was made. In this District, Bankruptcy Judge Wed-off and District Judge Gettleman have held in separate recent cases that allowing a debtor to avoid a lien on property deemed exempt only because the time limit for objecting had expired under 11 U.S.C. § 522(i) would ignore the requirement of 11 U.S.C. § 522(f) that the debtor must legally be entitled to the exemption under 11 U.S.C. § 522(b). Both judges reasoned that the lien avoidance provision of § 522(f) applies only when the debtor would lawfully have been entitled to the exemption under state law and 11 U.S.C. § 522(b) regardless whether timely objection is filed. In re Chinosorn, 243 B.R. 688, 698-99 (Bankr.N.D.Ill.2000); In re Felber, 1999 WL 350832, *4 (N.D.Ill.1999). The undersigned Judge has previously come to a contrary view in In re Youngblood, 212 B.R. 593, 597-98" }, { "docid": "251708", "title": "", "text": "the exemption as indicative of congressional intent to allow consideration of the validity of the exemption in the context of a lien avoidance action and as indicating that the statute does not automatically allow avoidance, merely because the exemption was established by default under Section 522(Z). In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992). Other courts reach the same result, but focus on the definition of “impairment” under Section 522(f). In In re Moe, 179 B.R. 654 (Bankr.D.Mont.1995), the court “held that such definition specifically requires the court to include the amount of the exemption that the debtor could claim, as opposed to actually claimed and allowed by default, if there were no liens on the property.” In re Thompson, 263 B.R. at 137. Another school of thought finds that Sections 522(f) and (l) serve different functions. “Exemption under § 522(i) quickly determines which property is available for distribution ... to unsecured creditors and which property is available for the ‘fresh start’ of the debtor. In contrast, § 522(f) extinguishes the property rights of a creditor.” In re Thompson, 263 B.R. at 137 (quoting In re Streeper, 158 B.R. 783, 787 (Bankr.N.D.Iowa 1993)). Some courts have reasoned that requiring a secured creditor to object to the exemptions when they are first claimed, when it does not know if the debtor will ever challenge its lien rights, will lead to “unnecessary litigation and may hinder the debtor’s fresh start.” In re Morgan, 149 B.R. 147, 152 (9th Cir. BAP 1993). In addition, it upsets the settled expectations of secured creditors that they have the option of not participating in the bankruptcy, even to the point of not filing a proof of claim, because of the general rule that their lien rights will survive the bankruptcy unaffected. In re Thompson, 263 B.R. at 137. Most importantly, denying the lien creditor its defense would be tantamount to a denial of due process. The Clerk’s Notice that informs all creditors of the bankruptcy filing and of the deadline for objections to exemptions does not specify the exemptions nor does it advise creditors at all" }, { "docid": "19322769", "title": "", "text": "15(a) of the United States District Court for the Northern District of Illinois. Venue lies properly under 28 U.S.C. § 1409. This matter constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (K). DISCUSSION Debtor seeks to avoid the judgment lien on his real property pursuant to 11 U.S.C. § 522(f)(1)(A) and 735 ILCS 5/12-112 and 735 ILCS 5/12-901. Liens on exempt property may be avoided under 11 U.S.C. § 522(f)(1)(A) which provides that a debtor may avoid the fixing of a judicial lien “on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled.” 11 U.S.C. § 522(f)(1)(A). See also In re Vasquez, 205 B.R. 136, 137 (Bankr.N.D.Ill.1997). There are four requirements to avoid a judicial lien: (1) The lien the debtor seeks to avoid is a judicial lien; (2) The debtor claims an exemption in the property to which the debtor is entitled under § 522(b); (3) The creditor’s lien impairs the debt- or’s exemption; and (4) The debtor has an interest in the property. In re Andres, 212 B.R. 306, 308 (Bankr.N.D.Ill.1997) See also In re Youngblood, 212 B.R. 593, 595 (Bankr.N.D.Ill.1997). A Judicial Lien Arises Against Entireties Property Zafar Sheikh obtained a judicial lien on Debtor’s property. A judicial lien is one “obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.” 11 U.S.C. § 101(36). A lien filed and recorded with respect to property held in tenancy by the entirety by a debtor and his non-debtor spouse fits this definition. See In re Allard, 196 B.R. 402, 407 (Bankr.N.D.Ill.1996), aff'd sub nom. Great Southern Co. v. Allard, 202 B.R. 938 (N.D.Ill.1996). But see In re Chinosorn, 243 B.R. 688, 693-96 (Bankr.N.D.Ill.2000) (showing that Illinois law is unclear on the issue of whether a recorded judgment against a single tenant gives rise to a lien on property held by two people as tenants by the entirety). According to Bankruptcy Judge Wedoff, in Chinosom, although the question is debatable, the recording of a judgment against only one tenant holding" }, { "docid": "14123710", "title": "", "text": "them on the eve of bankruptcy have bank accounts), and that is the present state of Illinois law. However, even though Debtor was not entitled under state law to exempt his withheld wages, Debtor listed those wages as exempt, and no one objected to that claim. Pursuant to 11 U.S.C. § 522(0, if no party in interest objects to a claimed exemption, such property is exempt. Fed. R. Bankr.P. 4003 requires the trustee or any creditor to file objections within 30 days after the meeting of creditors. No such objections were filed in this case. The Supreme Court and a panel of the Seventh Federal Circuit have clearly held that even where a debtor has no colorable basis for claiming an exemption, once the 30-day period has expired, the property is incontestably exempt. Taylor v. Freeland & Kronz, 503 U.S. 638, 643-44, 112 S.Ct. 1644, 1648-49, 118 L.Ed.2d 280 (1992); Matter of Kazi, 985 F.2d 318 (7th Cir.1993). Thus, the present issue comes down to whether Debtor can avoid the lien on his wages which impairs an asserted exemption not contested here but which he is not entitled to under the changed Illinois law. Several bankruptcy courts have held that the 30-day requirement under Rule 4003 as applied to Code § 522(1) does not apply to lien avoidance motions. In re Moe, 179 B.R. 654, 655 (Bankr.D.Mont.1995) (collecting cases). One requirement under § 522(f)(2) for avoiding a judicial hen is that the debtor be entitled to the exemption under § 522(b). An exemption not objected to becomes incontestable under § 522(1). Some courts therefore reason that a hen would not be avoidable under § 522(f)(2). Id. (citing In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992), aff'd, 153 B.R. 601 (9th Cir. BAP 1993), aff'd, 24 F.3d 247 (9th Cir.1994); In re Morgan, 149 B.R. 147, 151-52 (9th Cir. BAB 1993)). Bankruptcy Judge Wedoff in this District recently analyzed the same issue and determined that to allow a debtor to avoid a hen on property deemed incontestably exempt solely pursuant to § 522® would ignore the literal requirement of § 522(f)" }, { "docid": "10228662", "title": "", "text": "concluded that a Chapter 7 trustee’s late-filed objection to a legally insufficient exemption was foreclosed under § 522© and Rule 4003(b), which required the trustee to object within 30 days from the § 341 First Meeting of Creditors. 503 U.S. at 643-45, 112 S.Ct. at 1648. The Supreme Court concluded: Davis claimed the lawsuit proceeds as exempt on a list filed with the Bankruptcy Court. Section 522(1), to repeat, says that “[ujnless a party in interest objects, the property claimed as exempt on such list is exempt.” Rule 4003(b) gives the Trustee and creditors 30 days from the initial creditors’ meeting to object. By negative implication, the Rule indicates that creditors may not object after 30 days “unless, within such period, further time is granted by the court.” The Bankruptcy Court did not extend the 30-day period. Section 522(1) therefore has made the property exempt. Taylor cannot contest the exemption at this time whether or not Davis had a color-able statutory basis for claiming it. Taylor, 503 U.S. at 643-44, 112 S.Ct. at 1648. In the ease sub judice, Debtor scheduled Citizens First National Bank as a secured creditor under its judgment lien, and under Schedule C declared the homestead in Wolf Point, Montana, exempt under “MCA § 70-32-104” at a value of claimed exemption in the sum of $40,000.00. Moe therefore contends Debtor now is entitled to the entire $40,000.00 exemption, even though § 70-32-104(2) concededly limits that exemption to $20,000.00. I reject the Debtor’s argument. For various reasons, bankruptcy courts have held that “exemption by default” as is allowed by Taylor does not apply to lien avoidance motions. For example, in the Ninth Circuit, the cases of In re Mohring, 142 B.R. 389, 394 (Bankr.E.D.Cal.1992), aff'd mem., 153 B.R. 601 (9th Cir. BAP 1993), aff'd mem., 24 F.3d 247 (9th Cir.1994), and In re Morgan, 149 B.R. 147, 151-152 (9th Cir. BAP 1993) both concluded that an exemption arising under § 522(Z) does not arise under § 522(b), and thus cannot support lien avoidance under § 522(f). Mohring reasons, “[t]he exemption by default under § 522(i) is not" }, { "docid": "8859636", "title": "", "text": "timely filed, an ex emption is valid even though it may-have no legitimate basis. Taylor, 503 U.S. at 643-44, 112 S.Ct. 1644. However, Taylor did not address the present question of what constitutes a sufficient “objection.” Section 522(i) of the Code and Rule 4003(b) are also silent on this point. Applebee v. Brawn, 138 B.R. 327, 333 n. 29 (Bankr.D.Me.1992) (In re Brawn) (“The rules prescribe no form for objections to exemption claims.”) Nonetheless, the issue is well-settled. An overwhelming majority of courts have held that, at least in the instance where some form of written objection was manifested within the 30 day deadline, Rule 4003(b) is satisfied even though no formal objection was filed. See generally, Kenneth D. Ferguson, Repose or Not? Informal Objections to Claims of Exemptions After Taylor v. Freeland, 50 Okla. L.Rev. 45 (1997) (discussing differing rationales used by courts to conclude that failure to file a formal objection does not preclude objection to a § 522(f) or (h) claim). See also, In re Brawn, 138 B.R. at 333 n. 29 (“[Rjesponse to § 522(f) motion qualifies, in and of itself, as the ‘objection’ Rule 4003 requires.”); Premier Capital, Inc. v. DeCarolis, 259 B.R. 467, 471 n. 8 (1st Cir. BAP 2001) (In re DeCarolis) (citing to In re Maylin, 155 B.R. 605, 613 (Bankr.D.Me.1993)) (“[E]ven if Taylor were applicable, ‘its rule does not foreclose a secured creditor from defending a § 522(f) or 522(h) action by denying that the property involved is exempt under applicable law.’”); Spenler v. Siegel, 212 B.R. 625, 630-31 (9th Cir. BAP 1997) (In re Spenler); In re Harry, 151 B.R. 735, 738 (Bankr.W.D.Va.1992) (objection in response to the debtor’s motion to avoid lien constitutes sufficient objection under Rule 4003(b)); In re Young, 64 B.R. 611, 613 (E.D.La.1986) (trustee’s motion to compel debtor’s turnover of property was sufficient objection). But see, In re Snyder, 215 B.R. 477, 478 (Bankr.W.D.Okla.1997) (response to a motion to avoid lien does not constitute sufficient objection for purposes of Rule 4003(b)). This Court will follow the majority view and holds that Cetiner’s Objection, though not formally" } ]

[ { "docid": "2085601", "title": "", "text": "ounces of cocaine. Garcia appeals, contending that the district court erroneously applied commentary from Guideline § 2D 1.4 in determining the appropriate sentence range. Ill In applying the Sentencing Guidelines, the first step is to “[djetermine the applicable offense guideline section from Chapter Two.” Sentencing Guidelines, § lBl.l(a). Section 2D1.1 of the Sentencing Guidelines is the guideline section most applicable to the offense of distribution of cocaine. Under section 2D1.1, a crime involving eight ounces (226.80 grams) of cocaine has a Base Offense Level of 20, while a crime involving sixteen ounces (453.60 grams) has a Base Offense Level of 24. Taking into account the district judge’s downward adjustment for acceptance of responsibility, the resulting offense levels are 18 for eight ounces of cocaine and 22 for sixteen ounces. These offense levels translate into sentencing ranges of thirty to thirty-seven months and forty-six to fifty-seven months, respectively, because Garcia’s Criminal History Category is II. Although Garcia pled guilty to a count charging him with distribution of eight ounces of cocaine, during the course of negotiations, as we have already noted, he represented that he could deliver sixteen ounces. The district court implicitly found that this was not mere “puffing” because it found as a fact, after hearing testimony and the arguments of counsel, that Garcia was “reasonably capable of producing the negotiated amount of [an] additional eight ounces.” That finding of fact is supported by the record and is not clearly erroneous. Relying on the commentary to section 2D1.4 (headed “Attempts and Conspiracies”), the district court determined that the appropriate amount of drugs to be considered in computing Garcia’s base offense level was sixteen ounces, rather than eight ounces, of cocaine, resulting in a base offense level of 24. Garcia contends that the district court erred because section 2D1.4 applies only to attempts and conspiracies and that, because he was not convicted of an attempt or conspiracy, the district court’s reliance on the commentary to section 2D1.4 was erroneous. We cannot agree. We first turn to section 2D1.1 as the guideline section most applicable to the offense of distribution of" } ]

[ { "docid": "23398888", "title": "", "text": "related to gambling, not cocaine, the jury could have also inferred that the money was related to the cocaine transaction. The choice of which inference to draw was for the jury, and we will not disturb that choice.\" Id. . This Note was amended, effective November 1, 1989. The third sentence now reads: However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing. Guideline § 2D1.4, Application Note 1 (Nov. 1, 1989). . The guidelines also provide that any act committed in furtherance of an “offense of conviction” is relevant to determination of the proper guideline range. See Guideline § lB1.3(a)(l). The jury convicted Mr. Buggs of conspiring to distribute more than 100 grams of heroin or its equivalent. The district court therefore did not err in concluding that the four ounces of heroin Mr. Buggs agreed to provide on June 30 \"is 'relevant conduct’ under section 1B1.3 ... [and] was conduct in furtherance of the conspiracy” to distribute heroin. R.47 at 7. . See United States v. Candito, 892 F.2d 182, 186 (2d Cir.1989) (defendant’s challenge to inclusion of negotiated amounts failed where there was no evidence that he was not reasonably capable of producing such amounts); United States v. Vopravil, 891 F.2d 155, 159 (7th Cir.1989) (quoting the revised application note, court concluded that drug amounts are excluded from guideline calculations only if the district court determines that the defendant did not intend to or could not produce such amounts). . The Fifth Circuit has reiterated this rule since its decision in Thomas. See United States v. Garcia, 889 F.2d 1454, 1455-57 (5th Cir.1989) (where defendant negotiated to sell sixteen ounces of cocaine and sold eight ounces, district court properly based the sentence upon the sixteen ounce figure), cert. denied, — U.S. —, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); United States v. Gordon, 876 F.2d 1121, 1126" }, { "docid": "6676115", "title": "", "text": "improperly included an unconsummated three-kilogram cocaine transaction in calculating the amount for which he was responsible, thereby triggering the minimum ten-year sentence mandated by 21 U.S.C. § 841(b)(l)(A)(ii) (ten-year minimum for distribution of five or more kilograms of cocaine). At sentencing, the government argued that Pion was responsible, under U.S.S.G. § 2D1.1 comment, (n. 12) (1992) [hereinafter: “note 12”], for the additional three kilograms he negotiated to supply Mendoza in July. The court determined, pursuant to note 12, that Pion was not “reasonably capable of producing” the three additional kilograms. Then it supportably found that the object of the conspiracy was to distribute in excess of six kilograms of cocaine, including the additional three kilograms Pion agreed to supply Mendoza later in July. Accordingly, the court concluded that Pion was subject to the ten-year minimum sentence mandated by statute for conspiring to possess and distribute five or more Kilograms of cocaine. See 21 U.S.C. §§ 841(b)(l)(A)(ii), 846. Relying on the finding that he was not capable of producing the three additional kilograms negotiated on July 3, see supra note 10, Pion argues that the ten-year minimum sentence mandated under 21 U.S.C. § 841(b)(l)(A)(ii) does not apply. We disagree. Pion’s position is confounded by the fact that note 12 is phrased in the conjunctive. See supra note 9. It requires the sentencing court to include the “weight under negotiation in an uncompleted distribution” unless it finds that “the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount.” Id. (emphasis added). Furthermore, note 12 directs the sentencing court — once again in the conjunctive — to “exclude from the guideline calculation the negotiated amount that it finds the defendant did not intend to produce and was not reasonably capable of producing.” Id. (emphasis added). Its conjunctive phrasing clearly is intended to avoid inflated sentences based on drug-quantity discussions in uncompleted transactions where the defendants were merely puffing; that is, where the defendants did not intend, and were unable, to produce the amount under discussion. Cf. United States v. Moreno, 947 F.2d 7, 9 (1st Cir.1991)" }, { "docid": "13319179", "title": "", "text": "GARZA, Circuit Judges. PER CURIAM: Corey Gannon Thomas pleaded guilty to possessing more than two kilograms of cocaine with intent to distribute, and his sentence was based on that amount. The factual basis of the plea states that he possessed slightly more than two kilograms. The district court’s factual finding regarding that amount is not clearly erroneous. See United States v. Montoya-Ortiz, 7 F.3d 1171, 1179 (5th Cir.1993). The district court rejected Thomas’s argument that the sentence should not have been based on two kilograms because he did not have the actual ability to distribute that amount. We review the district court’s legal conclusions regarding the Sentencing Guidelines de novo. Id. Thomas relies on United States v. Garcia, 889 F.2d 1454, 1457 (5th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). Garcia holds that a defendant convicted of distribution of eight ounces of cocaine may be sentenced on the basis of the eight ounces that he actually distributed plus eight additional ounces that he negotiated to distribute but never actually distributed. Id. Garcia’s crime of conviction was a choate offense, but his sentence was properly based on completed and uncompleted distribution. Id. That holding comports with U.S.S.G. § 2D1.1, comment, (n.12), which addresses a quantity “under negotiation in an uncompleted distribution.” In the instant case, there is no uncompleted amount. Thomas actually possessed two kilograms, and he was sentenced on the basis of that amount. Garcia is inapposite. This appeal borders on being frivolous. We caution counsel. Federal Public Defenders are like all counsel subject to sanctions. They have no duty to bring frivolous appeals; the opposite is true. See United States v. Burleson, 22 F.3d 93 (5th Cir.1994). AFFIRMED. Local Rule 47.5 provides: \"The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined that this opinion should not be published." }, { "docid": "14350036", "title": "", "text": "prosecutor first establish that the witness has exhausted his present recollection before she can refresh his memory. United States v. Pate, 543 F.2d 1148, 1149 (5th Cir.1976). We reject this argument. F. Finally, Meliksetian argues that he should be sentenced for the actual amount of cocaine purchased (4.9938 kilograms), rather than for the amount he and his co-conspirators negotiated to buy (5 kilograms). Under the Guidelines, a quantity of 5 kilograms requires a base offense level of 32, with a sentencing range (at criminal history category I) of 121-151 months; a quantity greater than 3.5 kilograms, but less than 5, requires a base offense level of 30, with a range of 97-121 months. U.S.S.G. § 2D1.11(e)(6), (7); U.S.S.G. Ch. 5 (sentencing table). We review de novo the district court’s application of the Sentencing Guidelines. United States v. Frazier, 985 F.2d 1001, 1002 (9th Cir.1993). Guidelines § 2D1.4(a) (Nov. 1990), since deleted, provided that “[i]f a defendant is convicted of a conspiracy or an attempt to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed.” U.S.S.G. § 2D1.4(a). Application note 1, in relevant part, provided that “[i]f the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount.” Id., comment, (n. 1). In Frazier, the defendant and his co-eon-spirators agreed to buy 2 kilos of cocaine from an undercover law enforcement officer. Frazier, 985 F.2d at 1002. The agent actually delivered 1.9948 kilograms. Id. We held that even in a “reverse sting” operation, the quantity negotiated, and not the quantity delivered, determines the offense level. Id.; see also United States v. Molina, 934 F.2d 1440, 1451-52 (9th Cir.1991) (negotiated amount of 50 kilograms, not 49.97 kilograms actually possessed, used to calculate base offense level). Here, the district court properly used the negotiated amount of five kilograms to calculate Meliksetian’s base offense-level. Frazier and Molina foreclose Meliksetian’s argument. We uphold Meliksetian’s sentence. G. Sogoyan maintains" }, { "docid": "23398876", "title": "", "text": "determine scale. If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. Where the defendant was not reasonably capable of producing the negotiated amount the court may depart and impose a sentence lower than the sentence that would otherwise result. With respect to the June 16 sale of heroin, where Mr. Buggs negotiated to sell more than he actually sold, the district court was correct in basing its calculation on the amount negotiated. While the application note speaks in terms of an uncompleted distribution, it is well established that it applies to partially completed distributions as well. See, e.g., United States v. Alvarez-Cardenas, 902 F.2d 734, 736 (9th Cir.1990); United States v. Alston, 895 F.2d 1362, 1369-71 (11th Cir.1990); United States v. Candito, 892 F.2d 182, 186 (2d Cir.1989); United States v. Garcia, 889 F.2d 1454, 1456-57 (5th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); United States v. Perez, 871 F.2d 45, 48 (6th Cir.), cert. denied, — U.S. —, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989). Although the aborted heroin transaction of June 30 was not the subject of a substantive drug trafficking count, it was alleged as an overt act in furtherance of the conspiracy. Therefore, the district court properly included the amount of drugs involved in this transaction in its sentencing calculation. We note that Mr. Buggs never has argued and there is no evidence that he “was not reasonably capable of producing the negotiated amount.” Application Note to Guideline § 2D1.4. Nor did the district court make such a finding. Moreover, we have held, as have several other courts of appeals, that negotiated amounts of drugs should be considered by the sentencing court. The Fifth Circuit first determined in United States v. Thomas, 870 F.2d 174 (5th Cir.1989), that the amount of cocaine involved in a conspiracy to distribute is the amount the defendant negotiated to supply. The court relied on the application note and concluded that “drug" }, { "docid": "23398889", "title": "", "text": "Buggs agreed to provide on June 30 \"is 'relevant conduct’ under section 1B1.3 ... [and] was conduct in furtherance of the conspiracy” to distribute heroin. R.47 at 7. . See United States v. Candito, 892 F.2d 182, 186 (2d Cir.1989) (defendant’s challenge to inclusion of negotiated amounts failed where there was no evidence that he was not reasonably capable of producing such amounts); United States v. Vopravil, 891 F.2d 155, 159 (7th Cir.1989) (quoting the revised application note, court concluded that drug amounts are excluded from guideline calculations only if the district court determines that the defendant did not intend to or could not produce such amounts). . The Fifth Circuit has reiterated this rule since its decision in Thomas. See United States v. Garcia, 889 F.2d 1454, 1455-57 (5th Cir.1989) (where defendant negotiated to sell sixteen ounces of cocaine and sold eight ounces, district court properly based the sentence upon the sixteen ounce figure), cert. denied, — U.S. —, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); United States v. Gordon, 876 F.2d 1121, 1126 (5th Cir.1989) (where defendants conspired to deliver two kilograms of cocaine but delivered only samples, sentencing court properly imposed sentence based on the two kilogram figure). . See also United States v. Rodriguez, 896 F.2d 1031, 1032-34 (6th Cir.1990) (sentence affirmed for conspiracy to possess and distribute marijuana where sentencing range was based upon negotiated amounts contemplated by conspirators). . See also United States v. Adames, 901 F.2d 11 (2d Cir.1990) (sentence based on negotiated purchase of 7.7 kilograms of heroin from undercover agents upheld although defendant actually purchased only 1-2 kilograms)." }, { "docid": "3222241", "title": "", "text": "of fake drugs. We hold that a sentence for drug conspiracy may be based on fake drugs. We are guided in this respect by the commentary to U.S.S.G. § 2D1.1. That commentary explains that where the drug offense involves an agreement to buy or sell, “the agreed-upon quantity of the controlled substance shall be used to determine the offense level.” U.S.S.G. § 2D1.1, Commentary, Application Note 12. Thus, for inchoate offenses, the quantity of drugs is based, not on the amount actually deliv ered, but on the amount agreed upon. United States v. Lombardi, 138 F.3d 559, 562 (5th Cir.1998). See also United States v, Dallas, 229 F.3d 105, 108-10 (2d Cir. 2000). Indeed, in convictions based on reverse-sting operations such as this one, where the actual quantity of drugs is controlled by the government instead of by the defendant, the quantity of drugs agreed upon more accurately reflects the scale of the offense than the quantity actually delivered. U.S.S.G. § 2D1.1 Commentary, Application Note 12. Accordingly, Burke’s sentence for drug conspiracy is properly based upon the amount he agreed to escort. His crime was complete when he agreed to aid in the distribution of 350 kilograms of cocaine with the intent to achieve that objective. II. Quantities That Were Part of the Dismissed Counts Even if fake cocaine is properly included in the drug quantity calculation, Burke argues that the sentencing court erred in considering the entire 350 kilograms of cocaine, real and fake, admitted to during the plea colloquy. Instead, Burke argues, the district court should have considered only the 50 kilograms involved in count two, the count to which Burke pleaded guilty. A. Standard of Review The question of whether the sentencing court is limited to the quantity of drugs that provided the factual basis for conviction is a legal question concerning the interpretation and application of the sentencing guidelines that we review de novo. Villegas, 404 F.3d at 359. Because Burke objected to the PSR’s consideration of the entire 350 kilograms of cocaine, our de novo review of the record is for harmless error. United States" }, { "docid": "7032367", "title": "", "text": "under a heading “Attempts and Conspiracies,” as the Fifth Circuit points out in United States v. Garcia, 889 F.2d 1454 (5th Cir. 1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990), its application is not limited to attempts and conspiracies. The Fifth Circuit notes that section 2D1.1 specifically directs the sentencing court to note if, as in this case, the offense of conviction involves “negotiation to traffic.” In Garcia, the defendant was convicted of distributing eight ounces of cocaine. He had negotiated to sell sixteen ounces to a DEA agent, but ultimately delivered only eight ounces to the agent. The evidence showed that the defendant was capable of producing sixteen ounces. The court traced the Guidelines from Application Note 11 of § 2D1.1 to Application Note 1 of § 2D1.4, and held that the District Court appropriately had used the sixteen ounces to determine the offense level. ■ Returning to section 2D1.1, we find that Application Note 12 also permits us to analyze this case under the relevant conduct provision of the Guidelines. Application Note 12 states: Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See § 1B1.3(a)(2) (Relevant Conduct). Section 1B1.3(a)(2) requires a base offense level to be determined on the basis of “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction” if the offenses are “of a character for which section 3D1.2(d) would require grouping of multiple counts.” Section 3D1.2(d) requires grouping of drug offenses. The law in this Circuit is clear that a base offense level is determined by the amount of drugs included in the defendant’s relevant conduct, not just amounts in the offense of conviction or charged in the indictment. See e.g., United States v. Ykema, 887 F.2d 697 (6th Cir.1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990); United States v. Smith, 887 F.2d 104 (6th Cir.1989); United States v. Sailes, 872 F.2d 735 (6th Cir.1989); United States v." }, { "docid": "22341519", "title": "", "text": "sentencing are in large part inapplicable to the court’s separate findings pursuant to § 841(b)(1)(A)©. i) The district court’s quantity findings for the Guidelines sentences The appellants’ first objection to' the 1650-gram is that it allegedly includes both the 334.8 grams of heroin sold on September 11, 1991, and the one kilogram of heroin that the parties negotiated for prior to the September 11 sale. The appellants contend that the 334.8-gram figure should be merged into the one kilogram figure so that the maximum amount that could be found from the September 11 negotiations and transaction is one kilogram. This argument ignores the fact that on September 11,1991, after he sold the heroin to Battiste, Mergerson negotiated with the agents for an additional kilogram to be delivered the following week. Mergerson told Harrington and Battiste that the “sky was the limit” for him and that he could get as much heroin as they wished. The appellants next argue that the one-kilogram figure should not be used in the Guidelines calculations at all because Merg-erson’s statements about being able to provide a kilogram were mere “puffing” and that in fact he could not actually produce that quantity of drugs. Anunaso relies on U.S.S.G. § 2D1.4 commentary which provides: [In] an offense involving negotiation to traffick in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing, (emphasis added). See also United States v. Garcia, 889 F.2d 1454, 1456-57 (5th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). Mergerson’s prior deliveries and promises for future deliveries, when taken in conjunction with the narcotics transaction notes found at Anunaso’s apartment, are evidence from which a fact-finder could reasonably determine that Mergerson had both the intent and ability to produce" }, { "docid": "23236461", "title": "", "text": "The quantity of drugs relevant in sentencing. Appellant Alston also complains that the district court erred in determining a base offense level under the Guidelines which reflected a cocaine conspiracy involving three kilograms of cocaine. Alston asserts that the quantity of drugs involved in the conspiracy was six ounces, the amount actually sold to Carter by Brennon; and that neither Brennon nor Alston had any capacity to obtain three kilograms of cocaine. As with appellant Alston’s other assertions of error, the determination of the quantity of cocaine involved in a conspiracy for the purposes of sentencing is a factual determination subject to the clearly erroneous standard. “Under the Sentencing Guidelines, the amount of the drug being negotiated, even in an uncompleted distribution, shall be used to calculate the total amount in order to determine the base level.” United States v. Perez, 871 F.2d 45, 48 (6th Cir.1989). Guidelines section 2D1.4 states that “[i]f a defendant is convicted of participating in an incomplete conspiracy or an attempt to commit any offense involving a controlled substance, the offense level shall be the same as if the object of the conspiracy or attempt had been completed.” See United States v. Roberts, 881 F.2d 95, 104-05 (4th Cir.1989) (quantity of drugs sought in conspiracy, not amount actually obtained, is used to set offense level). The version of Application Note 1 to Guidelines § 2D1.4 in effect between November 1, 1987 and November 1, 1989, states, in relevant part, that If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. Where the defendant was not reasonably capable of producing the negotiated amount, the court may depart and impose a sentence lower than the sentence that would otherwise result. If the defendant is convicted of conspiracy, the sentence should be imposed only on the basis of the defendant’s conduct or the conduct of co-conspirators in furtherance of the conspiracy that was known to the defendant or was reasonably foreseeable.” The conspiracy conviction, itself, is" }, { "docid": "22199187", "title": "", "text": "account the uncertainty of Wilson’s report of Davis’ crack sales when it adopted the PSR. Specifically, Wilson stated for the PSR and testified at the sentencing hearing that he “occasionally would buy powder cocaine.” This testimony would support as few as two or three purchases of powder cocaine and as many as seven or eight sales of crack. Nevertheless, the PSR and the district court discounted the amount of crack Davis sold to Wilson by assuming only five transactions involving crack. Given the trial court’s conservative estimate, we must say that the court’s attribution to Davis of seven ounces of crack cocaine is not clearly erroneous. Ill Davis next contends that the district court erred by attributing to him the full two ounces he negotiated to sell to Wilson on July 27,1994. Instead, Davis argues that he should be charged with the actual amount he sold (46.4 grams or slightly less than less than two ounces). We review the application of the sentencing guidelines de novo. United States v. Edwards, 65 F.3d 430 (5th Cir.1995). A district court may attribute to a defendant convicted of possession with intent to distribute the amount of an unconsummated transaction, unless the defendant did not intend or was not reasonably capable of producing that amount. United States v. Garcia, 889 F.2d 1454, 1457 (5th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). In this case, Davis has offered no testimony to support his contention that he did not intend to sell Wilson two ounces or that he was not capable of doing so. We therefore affirm the district court’s decision to use the negotiated amount. IV We thus hold, based on all of the evidence available for the district court’s consideration, that the determination that seven ounces of crack cocaine were attributable to Davis was not clearly erroneous. The sentence of Joe Drell Davis is therefore AFFIRMED. . Specifically, Davis maintains that Wilson's testimony (a) limited the total number of drug transactions between Davis and Wilson before July 27, 1994, to five transactions, and (b) established that only half" }, { "docid": "7032366", "title": "", "text": "whether the mitigating or aggravating circumstance had in fact been taken into account in promulgating those specific Guidelines. Defendant argues that the fact that he negotiated to purchase, although never possessed, 500 grams is a mitigating circumstance not considered by the Guidelines that the District Court should have taken into account. We disagree because we find that the Guidelines specifically provide for this situation. Section 2D1.1 is the Guideline section that sets forth the base offense levels for drug offenses. Application Note 12 to section 2D1.1 makes clear that the specific quantity of drugs mentioned in the indictment is not controlling. That note states: If the offense involved negotiation to traffic in a controlled substance, see Application Note 1 of the Commentary to § 2D1.4. If we turn then to Application Note 1, we find that it provides: If the defendant is convicted of an .offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. Although that note is located under a heading “Attempts and Conspiracies,” as the Fifth Circuit points out in United States v. Garcia, 889 F.2d 1454 (5th Cir. 1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990), its application is not limited to attempts and conspiracies. The Fifth Circuit notes that section 2D1.1 specifically directs the sentencing court to note if, as in this case, the offense of conviction involves “negotiation to traffic.” In Garcia, the defendant was convicted of distributing eight ounces of cocaine. He had negotiated to sell sixteen ounces to a DEA agent, but ultimately delivered only eight ounces to the agent. The evidence showed that the defendant was capable of producing sixteen ounces. The court traced the Guidelines from Application Note 11 of § 2D1.1 to Application Note 1 of § 2D1.4, and held that the District Court appropriately had used the sixteen ounces to determine the offense level. ■ Returning to section 2D1.1, we find that Application Note 12 also permits us to analyze this case under the relevant conduct provision of" }, { "docid": "1292683", "title": "", "text": "should only be sentenced on the basis of his intent to buy one kilogram. A sentencing court’s conclusion as to the amount of cocaine involved in an offense is a factual finding, reviewed under the clearly erroneous standard. United States v. Buggs, 904 F.2d 1070, 1078 (7th Cir.1990). The first Application Note to Guidelines § 2D1.4 tells a court how to calculate the amount of drugs for which a defendant may be held responsible when the arrest comes before the transaction is complete. If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing. U.S.S.G. § 2D1.4, comment, (n. 1) (emphasis added). Cea relies on the emphasized portion of this Application Note as support for his claim that he should only be held responsible for the one kilogram of cocaine he intended to buy at the time of his arrest. We disagree. The purpose of this Application Note is to prevent a defendant from being sentenced on the basis of idle boasts or braggadocio rather than for the amount of contraband he actually intended to produce or buy and was reasonably able to produce or buy. For example, in United States v. Ruiz, 932 F.2d 1174 (7th Cir.1991), the defendant conspired to sell two kilograms of cocaine, but brought only one to the transaction. When the buyer (an undercover agent) became upset at this shortfall, Ruiz said, “It doesn’t matter. I’ll get you the other kilo. And, if you want, even ten more I can get.” Id. at 1177. The district court calculated Ruiz’s offense level under § 2D1.4, and held him responsible for ten kilograms, not two. We reversed on this point, holding that Ruiz should only be" }, { "docid": "13319178", "title": "", "text": "violation of the law. United States v. Mitchell, 964 F.2d 454, 462 (5th Cir.1992). Such a violation of law occurs if the district court refuses to depart under the mistaken assumption that it could not legally do so. Id. In this case the district court chose not to depart from the applicable guidelines range because it believed that Burleson’s behavior was not aberrant. The district court did not err by refusing to grant the downward departure. This appeal is frivolous. We caution counsel. Federal Public Defenders are like all counsel subject to sanctions. They have no duty to bring frivolous appeals; the opposite is true. See United States v. Thomas, (5th Cir. May 18, 1994, No. 93-3558) (unpublished; copy attached). APPEAL DISMISSED. ATTACHMENT In the United States Court of Appeals for the Fifth Circuit No. 93-3558 Conference Calendar. United States of America, Plaintiff-Appellee, v. Corey Gannon Thomas, Defendant-Appellant. May 18, 1994. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. CR-92-589 “H” (4). Before HIGGINBOTHAM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. PER CURIAM: Corey Gannon Thomas pleaded guilty to possessing more than two kilograms of cocaine with intent to distribute, and his sentence was based on that amount. The factual basis of the plea states that he possessed slightly more than two kilograms. The district court’s factual finding regarding that amount is not clearly erroneous. See United States v. Montoya-Ortiz, 7 F.3d 1171, 1179 (5th Cir.1993). The district court rejected Thomas’s argument that the sentence should not have been based on two kilograms because he did not have the actual ability to distribute that amount. We review the district court’s legal conclusions regarding the Sentencing Guidelines de novo. Id. Thomas relies on United States v. Garcia, 889 F.2d 1454, 1457 (5th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). Garcia holds that a defendant convicted of distribution of eight ounces of cocaine may be sentenced on the basis of the eight ounces that he actually distributed plus eight additional ounces that he negotiated to distribute but never actually" }, { "docid": "23398875", "title": "", "text": "The sentence will be upheld if the guidelines were properly applied to factual conclusions that are not clearly erroneous. United States v. Vopravil, 891 F.2d 155, 157 (7th Cir.1989). Ascertaining the quantity of drugs involved in an offense for the purpose of sentencing is a factual determination subject to the clearly erroneous standard. United States v. Alston, 895 F.2d 1362, 1369 (11th Cir.1990); United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989). 1. Mr. Buggs maintains that the sentencing court improperly considered negotiated but undelivered amounts of heroin in calculating the total amount of drugs involved in this case. However, the guidelines make it clear that the sentencing court is to include such amounts in its calculation. The first Application Note to Guideline § 2D1.4 {Attempts and Conspiracies) provides, in part: 1. If the defendant is convicted of a conspiracy that includes transactions in controlled substances in addition to those that are the subject of substantive counts of conviction, each conspiracy transaction shall be included with those of the substantive counts of conviction to determine scale. If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. Where the defendant was not reasonably capable of producing the negotiated amount the court may depart and impose a sentence lower than the sentence that would otherwise result. With respect to the June 16 sale of heroin, where Mr. Buggs negotiated to sell more than he actually sold, the district court was correct in basing its calculation on the amount negotiated. While the application note speaks in terms of an uncompleted distribution, it is well established that it applies to partially completed distributions as well. See, e.g., United States v. Alvarez-Cardenas, 902 F.2d 734, 736 (9th Cir.1990); United States v. Alston, 895 F.2d 1362, 1369-71 (11th Cir.1990); United States v. Candito, 892 F.2d 182, 186 (2d Cir.1989); United States v. Garcia, 889 F.2d 1454, 1456-57 (5th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990); United States" }, { "docid": "12064095", "title": "", "text": "with base levels for offenses involving drugs requires reference in this case to Application Note 1 to Guideline Section 2D1.4, because Count 2 “involved negotiation to traffic in a controlled substance” (quoting Note 12). The short answer is that Count 2 was a possession and distribution count and not a negotiation count. Moreover, Application Note 1 only excludes drug amounts from guideline calculations if “the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount” of the illegal substance. Judge Evans made no such finding. CONCLUSION For the reasons discussed above, the decision of the district court is affirmed. . The government and the presentence report state that Vopravil fled when he \"observed a surveillance officer.” At oral argument in this case Vopravil’s appellate counsel characterized this reason for Vopravil’s departure as \"pure speculation,” but offered no alternative reason. Resolution of this difference of opinion is not germane to the outcome of this case. . The case was transferred from Judge Warren to Judge Evans by a January 4, 1989, order. . One ounce of cocaine equals approximately 28.35 grams. The judge added the amounts from the two one-ounce transactions to the kilogram from the uncompleted transaction to arrive at a base amount of 1.06 kilograms. Applying Guideline § 2D1.1(a)(3) and the drug quantity table in § 2Dl.l(c), this amount of cocaine placed Vopravil at a base offense level of 26. .See United States v. Williams, 880 F.2d 804 (4th Cir.1989) (defendant pled guilty to and convicted of one drug-related count but sentenced on the basis of that count plus quantities of drugs in other, dismissed, counts); United States v. Taplette, 872 F.2d 101 (5th Cir.1989) (same); United States v. Ykema, 887 F.2d 697 (6th Cir.1989) (same); United States v. Allen, 886 F.2d 143 (8th Cir.1989) (same); United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989) (defendant pled guilty to and convicted of one count of postal-stamp vending machine theft, but sentenced on the basis of a dismissed count of theft of another machine and uncharged thefts of still other" }, { "docid": "22341520", "title": "", "text": "about being able to provide a kilogram were mere “puffing” and that in fact he could not actually produce that quantity of drugs. Anunaso relies on U.S.S.G. § 2D1.4 commentary which provides: [In] an offense involving negotiation to traffick in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. However, where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing, (emphasis added). See also United States v. Garcia, 889 F.2d 1454, 1456-57 (5th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990). Mergerson’s prior deliveries and promises for future deliveries, when taken in conjunction with the narcotics transaction notes found at Anunaso’s apartment, are evidence from which a fact-finder could reasonably determine that Mergerson had both the intent and ability to produce the negotiated amount. Thus, the district court’s finding regarding the applicable drug quantity for sentencing purposes was not clearly erroneous. ii) The district court’s quantity finding for purposes of Mergerson’s mandatory life sentence on count one In order to sentence Mergerson to a mandatory life term of imprisonment under 21 U.S.C. §§ 841(b)(l)(A)(i) & 846, the district court had to find by a preponderance of the evidence that Mergerson actually possessed or conspired with Anunaso to actually possess over a kilogram of heroin during the conspiracy alleged in count one of the Government’s indictment. Mere proof of the amounts “negotiated” with the undercover agents — including the kilogram of heroin discussed immediately, supra —would not count toward the quantity of heroin applicable to the conspiracy count. It is essentially undisputed that Mergerson actually possessed approximately 450 grams of heroin, the quantity actually distributed to the agents. The only other evidence offered by the Government to support its allegation that Mergerson conspired to possess over a kilogram of heroin with the intent to distribute was a" }, { "docid": "23236462", "title": "", "text": "offense level shall be the same as if the object of the conspiracy or attempt had been completed.” See United States v. Roberts, 881 F.2d 95, 104-05 (4th Cir.1989) (quantity of drugs sought in conspiracy, not amount actually obtained, is used to set offense level). The version of Application Note 1 to Guidelines § 2D1.4 in effect between November 1, 1987 and November 1, 1989, states, in relevant part, that If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. Where the defendant was not reasonably capable of producing the negotiated amount, the court may depart and impose a sentence lower than the sentence that would otherwise result. If the defendant is convicted of conspiracy, the sentence should be imposed only on the basis of the defendant’s conduct or the conduct of co-conspirators in furtherance of the conspiracy that was known to the defendant or was reasonably foreseeable.” The conspiracy conviction, itself, is not before us; appellant claims instead that the district court was erroneous in finding a three-kilogram, rather than a one-kilogram or six-ounce, conspiracy. Determining whether the evidence supported a finding that Alston and Brennon were “reasonably capable of producing the negotiated amount” requires a sensitive assessment of the facts by the district court. Appellant Alston was present when his co-conspirator Brennon stated that he could deliver three kilograms of cocaine to Agent Carter. The evidence in this case indicates that although Brennon’s “local source” would only give him one kilo, Brennan agreed, with Alston’s enthusiastic support, to attempt to arrange for the delivery of several more kilos of cocaine through his Florida “contacts,” or a combination of his “local” and Florida sources. The district court also heard other evidence at the sentencing hearing to indicate that the conspiracy involved a three-kilogram transaction. The district court was not clearly erroneous in finding that Brennon was “reasonably capable of producing the negotiated amount.” U.S.S.G. § 2D1.4, comment, (n. 1) (Jan. 1988). 3. The propriety of considering quantities" }, { "docid": "22108272", "title": "", "text": "amounts of cocaine from others, and requested money for the drugs he had already distributed. The court stated that it did not “view these conversations here as being a puffing” or an exaggeration of the actual amounts of cocaine involved in the telephone negotiations between Ingram and his cocon-spirators. Based on this evidence, the court found that Ingram was a “major player in street distribution” who was “daily involved in drug dealing,” and concluded that the amounts mentioned in the conversations to-talled more than five kilograms of cocaine. The district court’s articulation of the factual basis for the base offense level was proper. Because the Guidelines provide that “[i]n an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount,” see id., the calculation did not need to be based on any completed transaction. It follows that the court certainly did not need to make specific findings as to the date of each distribution transaction and the amount involved in those transactions. Instead, the court properly stated the bases for its approximation of the quantity of cocaine involved in Ingram’s discussions with his co-conspirators. We therefore hold that the court’s attribution of at least 5 kilograms to appellant was not clearly erroneous. See United States v. Adams, 988 F.2d 493, 495 (4th Cir.1993). V. At Ingram’s sentencing hearing, the government sought to classify him as a career offender under § 4B1.1 of the Sentencing Guidelines. Section 4B1.1 provides that a defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1. After considering Ingram’s criminal history at sentencing, the district court decided that § 4B1.1 did not apply to Ingram. The government now appeals this ruling, claiming that" }, { "docid": "22108271", "title": "", "text": "in not articulating a factual basis for finding that at least 5 kilograms of cocaine were attributable to him. More specifically, Ingram asserts that the district court should have made specific findings as to when his drug transactions occurred and how much cocaine was involved in each transaction, and then calculated the total amount of cocaine attributable to him. We find no merit in this argument. The Sentencing Guidelines provide that “[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1, Commentary (n.12) (emphasis added). Because there were only a few drug seizures involved in this ease, the district court grounded its calculation of Ingram’s base offense level on a careful evaluation of the wiretap evidence presented at trial and briefed by both sides at sentencing. More specifically, the court heard conversations in which Ingram agreed to sell % tO/£ kilograms of cocaine (per transaction) to his various co-conspirators, offered to buy similarly large amounts of cocaine from others, and requested money for the drugs he had already distributed. The court stated that it did not “view these conversations here as being a puffing” or an exaggeration of the actual amounts of cocaine involved in the telephone negotiations between Ingram and his cocon-spirators. Based on this evidence, the court found that Ingram was a “major player in street distribution” who was “daily involved in drug dealing,” and concluded that the amounts mentioned in the conversations to-talled more than five kilograms of cocaine. The district court’s articulation of the factual basis for the base offense level was proper. Because the Guidelines provide that “[i]n an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount,” see id., the calculation did not need to be based on any completed transaction. It follows that the court certainly did not need to make specific findings as to the date of each distribution transaction and the amount involved in" } ]

[ { "docid": "10213872", "title": "", "text": "tax' lien. We disagree. See In re Perkins, 134 B.R. 408 (Bankr.E.D.Cal.1991) (federal tax lien was enforceable against debtor’s interest in a spendthrift trust irrespective of its exempt status). As the court stated in Perkins: [T]he Ninth Circuit has specifically held that while a spendthrift clause may be effective to shield attachment and levy by general creditors 'against a beneficiary’s interest in a trust, such shield is unavailing to attachment and levy of a federal tax lien. See Leuschner v. First Western Bank and Trust Co., 261 F.2d 705 (9th Cir.1958). In addition, Congress has expressly indicated that even where a debtor may choose to exempt rights to a pension under section 522(d)(10)(E)(iii), such exemption does not affect a federal tax lien. Perkins, at 411. Section 522(c)(2)(B) provides that property exempted under § 522 is subject to a tax lien. See Perkins, at 411. The Raihls also assert that applicable Revenue Rulings and Treasury Regulations establish that the IRS cannot execute against a pension that is not in pay status. But execution is not at issue here, the attachment of a federal tax lien is. We hold that the Raihls’ interest in the subject plans constitutes “property” or “rights to property” that are subject to a federal tax lien under 26 U.S.C. § 6321. V. CONCLUSION The Raihls’ interest in the subject plans constitute “property” or “rights to property” that are subject to a federal tax lien under 26 U.S.C. § 6321. We AFFIRM . . Unless otherwise indicated, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101 etseq. and to the Federal Rules of Bankruptcy Procedure, Rules 1001 et seq. . For example, Raihl can only receive distributions from the Deferred Income Option component and the Company Matching Contribution component upon reaching the age of 59 and Vi, death, retirement or hardship. Raihl cannot sell his interest in the plans, nor is his interest transferable. There are also percentage limitations on employee contribution amounts. . 26 U.S.C. § 6321 provides in part: If any person liable to pay any tax neglects or refuses to" } ]

[ { "docid": "14739805", "title": "", "text": "and rights to property, whether real or personal, belonging to such person.” Local law, here Philippine, determines whether the taxpayer has “rights to property” to which the tax lien may attach. See Morgan v. Commissioner, 309 U.S. 78, 80, 60 S.Ct. 424, 425, 84 L.Ed. 585 (1940); Runkel v. United States, 527 F.2d 914 (9th Cir.1975). Because the tax deficiencies were assessed only against the husbands, the tax liens under Section 6321 can encumber only property in which the husbands have some right. The wives contend that their husbands have no property rights in the wives’ half of the conjugal property, and that the tax liens therefore cannot extend to more than the husbands’ half of the conjugal properties. For support, the wives cite United States v. Overman, 424 F.2d 1142 (9th Cir.1970); Ackerman v. United States, 424 F.2d 1148 (9th Cir.1970), and Commissioner v. Cadwallader, 127 F.2d 547 (9th Cir.1942). None of these cases, however, is controlling. In both Overman and Ackerman, state law prevented a husband’s premarital creditors from reaching any of the community property. The government nevertheless attempted to foreclose premarital tax liens against the community property. The wives argued that the husbands lacked a separate property interest in any of the community property to which a premarital tax lien could attach. Overman, 424 F.2d at 1145; Ackerman, 424 F.2d at 1149. We held that § 6321 overrode the state creditor exclusion and that the husband had a sufficient property right in his undivided one half interest in the community property for the assertion of tax liens. Overman, 424 F.2d at 1146; Ackerman, 424 F.2d at 1150. Thus, Overman and Ackerman extended the reach of premarital tax liens to half of the community property even when state law insulated the community property from premarital creditors generally. In the present case, in contrast, Philippine law (article 161) permits the liens to reach all oí the conjugal property. Nothing in Over-man or Ackerman reduces the reach of the tax liens below what local law permits. In Commissioner v. Cadwallader, 127 F.2d 547 (9th Cir.1942), we considered the appli cation" }, { "docid": "12718174", "title": "", "text": "or personal, belonging to such person.” 26 U.S.C. § 6321. State law determines whether the taxpayer has “property” or “rights to property” to which the tax lien may attach. Aquilino v. United States, 363 U.S. 509, 513, 80 S.Ct. 1277, 1280, 4 L.Ed.2d 1365 (1960). See In re Carlson, 580 F.2d 1365, 1368-69 (10th Cir. 1978). The taxpayer here, plaintiff’s husband, owns an undivided half interest in the property. See Clovis v. Clovis, 460 P.2d 878, 881-82 (Okl.1969); Reynolds, Co-ownership of Property in Oklahoma, 27 Okla.L.Rev. 585 (1974). Due to the homestead nature of this property, Oklahoma law places certain restrictions upon the joint owners and their creditors for the protection of the family. Nevertheless, these constitutional and statutory restrictions do not negate the proprietary interest of the taxpayer. As the Ninth Circuit has recognized, “all that section 6321 requires is that the interest be ‘property’ or ‘rights to property.’ It is of no statutory moment how extensive may be those rights under state law, or what restrictions exist on the enjoyment of those rights.” United States v. Overman, 424 F.2d 1142, 1145 (9th Cir. 1970). Plaintiff contends, however, that our decisions in United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973), and Jones v. Kemp, 144 F.2d 478 (10th Cir. 1944), govern the instant case and preclude the attachment of a federal tax lien on homestead property. Hershberger was an action brought by the United States to foreclose on the Kansas homestead of a husband and wife to satisfy the unpaid tax liability of the husband. We refused to order sale of the property, holding that “[wjhile [the wife] is living on the property, the government may not enforce its tax lien against the homestead.” 475 F.2d at 682. Previously in Jones we said that “a wife is granted an indivisible and vested interest in homestead property, and one which cannot be subjected to levy and sale for the satisfaction of the Federal tax liability of her husband.” 144 F.2d at 480. We went on to hold, however, that the husband’s property was not exempt from sale because" }, { "docid": "11871277", "title": "", "text": "(D.Md.1944). Since such a restraint is merely a state-created exemption from the reach of creditors, and not an aspect of the substantive right, it cannot serve to defeat the federal tax lien. Leuschner v. First Western Bank and Trust Co., 261 F.2d 705, 708 (9th Cir. 1958). See Note, supra, 77 Harv.L. Rev. at 1489. With respect to- the fact that the judgment for support can be modified at any time upon application of either party, we note first that modification is not a matter for the unrestrained discretion of the court, but rather is available only when “the petitioner shows a change of circumstances since the entry of the earlier decree.” Robbins v. Robbins, 343 Mass. 247, 249, 178 N.E.2d 281, 282 (1961). The support judgment is intended to be a final determination of the rights of the parties absent a real, and not just apparent, change of circumstances. Id. at 249, 252, 178 N.E.2d 281. We do not believe that this restrained discretion to modify the support judgment renders the right to support so inchoate that it is not a right to property. Rather, we agree with the reasoning of United States v. Taylor, 254 F.Supp. 752, 756 (N.D.Cal.1966), which held that the federal tax lien attached to the beneficiary’s interest under a spendthrift trust for support: the fact that the right has a variable value does not affect the conclusion that the tax lien attaches to the taxpayer’s substantial and enforceable interest. “At most, it is a circumstance which may add to the practical problems of enforcing the lien.” Id. We therefore hold that the taxpayer’s right to receive support payments from appellee is a right to property to which the federal tax lien, 26 U.S.C. § 6321, has attached, and that the government is entitled to an adjudication of competing claims and a decree foreclosing and enforcing the lien. 26 U.S.C. § 7403. We recognize, however, that the practical problems involved in enforcing this lien are substantial. The district court has the power to adjudicate the merits of all claims to the property in question, 26" }, { "docid": "20938996", "title": "", "text": "is variable according to the taxpayer’s needs. At any given point in time it can be assigned a reasonably accurate dollar value by assessing the taxpayer’s current needs and living demands. It may be assumed that his current needs are at least comparable in amount to the weekly payments which were terminated by the trustees in February, 1965. It appears that in each tax lien problem there are two aspects: (a) identifying the right to which the lien can attach, and (b) working out a practical method of enforcing the lien. The fact that the property right under consideration has a variable value cannot be advanced as a valid reason against concluding that the tax lien has attached to the taxpayer’s substantial, vested property right in the trust. At most, it is a circumstance which may add to the practical problems of enforcing the lien. IV Does the forfeiture clause terminate the taxpayer’s property right and therefore defeat the tax lien? The question as to whether a forfeiture clause is invalid as against a government-tax lien is apparently a question of first impression. In Leuschner v. First Western Bank & Trust Co., 261 F.2d 705, (9th Cir. 1958), the court held that the right of the United States to collect unpaid income taxes prevails over spendthrift trust provisions of a trust notwithstanding California statutes which exempt a portion of the right of a beneficiary to receive unencumbered trust payments for his support and education. In the course of his opinion in Leuschner, the late Circuit Judge James Alger Fee said (p. 708): “No opinion is expressed as to what result would follow if the trust provided that, upon seizure of the proceeds, the gift would lapse and thereafter the income would be payable to the other cestui que trust. This dictum provided the attorney drafting the forfeiture provision in question with an artful and ingenious method of attempting to avoid the consequences of the government lien herein. Presumably aware that the law in the Ninth Circuit was settled that a simple spendthrift trust provision was of no effect to prevent" }, { "docid": "14739804", "title": "", "text": "Laperal v. Katigbak, 104 Phil. 999, 1004-05 (1958) (spouses separated and wife no longer received any of the business income). Here, the wives undeniably received the benefits of their husbands’ business income; the tax obligations were incurred to benefit the community. The wives argue that, although they received income from their husbands’ businesses, they received no benefit from the attachment of the tax liens. This argument ignores the reality of this transaction. The income and tax were not two unrelated transactions; rather they are aspects of a single transaction. The wives can no more retain the benefit of earnings while avoiding the non-beneficial taxes than they could retain a loan while avoiding the non-beneficial obligation of a promissory note. See Laperal v. Katigbak, 104 Phil. at 1004; Javier v. Osmena, 34 Phil. 336 (1916). Second, the wives contend that their husbands lack any property interest in the wives’ half of the property to which the tax liens can attach. Pursuant to 26 U.S.C. § 6321 (1967), a lien for unpaid taxes arises upon “all property and rights to property, whether real or personal, belonging to such person.” Local law, here Philippine, determines whether the taxpayer has “rights to property” to which the tax lien may attach. See Morgan v. Commissioner, 309 U.S. 78, 80, 60 S.Ct. 424, 425, 84 L.Ed. 585 (1940); Runkel v. United States, 527 F.2d 914 (9th Cir.1975). Because the tax deficiencies were assessed only against the husbands, the tax liens under Section 6321 can encumber only property in which the husbands have some right. The wives contend that their husbands have no property rights in the wives’ half of the conjugal property, and that the tax liens therefore cannot extend to more than the husbands’ half of the conjugal properties. For support, the wives cite United States v. Overman, 424 F.2d 1142 (9th Cir.1970); Ackerman v. United States, 424 F.2d 1148 (9th Cir.1970), and Commissioner v. Cadwallader, 127 F.2d 547 (9th Cir.1942). None of these cases, however, is controlling. In both Overman and Ackerman, state law prevented a husband’s premarital creditors from reaching any of the" }, { "docid": "13386812", "title": "", "text": "because he [did] not acquire physical possession of such money.” Ray, 425 N.Y.S.2d at 631. Because the $10,000 payment to the production, company satisfying the judgment debtor’s debts benefitted him as if he had received the money directly, it was reasonable for the Ray court to hold that he had an interest in that money. Here, Mr. Coluccio simply gained the beneficial use of the money for a brief period of time to contest the forfeiture of his airplane. It cannot be said, as in Ray, that because Mr. Coluccio was able to use his mother’s $2,500 to post a cost bond in order to challenge the forfeiture of his airplane, that he gained a benefit similar to what it would have been if Ms. Coluccio had given him the $2,500 outright. Ray simply does not speak to the type of de minimis benefit Mr. Coluccio realized by the posting of the subject cost bond. More importantly, the district court failed to consider whether and to what extent Ms. Coluceio’s interest in the return of the funds securing the bond may necessarily diminish any interest Mr. Coluccio had in it. Indeed, if under New York law, Ms. Coluccio “owns” the funds securing the bond, then the execution upon the funds underlying the bond by the Government would be limited to the extent that her ownership interest would require. See 28 U.S.C. § 3010(a) (“The remedies available to the United States under [the FDCPA] may be enforced against property which is co-owned by a debtor and any other person only to the extent allowed by the law of the State where the property is located.”). As we have noted, supra, Ms. Coluccio has alleged facts, which if proven, would demonstrate that she is the beneficiary of a constructive trust on the funds securing the cost bond. If she were the beneficiary of such a trust, then she would be “the equitable owner” of those funds. See I William F. Fratcher, Scott on Trust § 12.1 (4th ed. 1987). In such circumstances, Mr. Coluccio, as “trustee” of those funds, would not have" }, { "docid": "14435825", "title": "", "text": "hand, who owned an undivided half interest in the property at the time of the conveyances, was declared an “innocent spouse” pursuant to 26 U.S.C. § 6013 by the IRS, thereby enabling the assessments against her to be abated and the liens released. In fact, Santina Sumpter received a Certificate of Discharge from the IRS dated December 31, 1998. The IRS, therefore, was not a creditor of Santina Sumpter and the conveyance of her interest in the six lots to the Trust did not constitute a fraudulent conveyance. As mentioned earlier, under Michigan law when a conveyance is fraudulent the conveyance may be -set aside as to that creditor “to the extent necessary to satisfy his claim,” or the creditor may “[disregard the conveyance and attach or levy execution upon the property conveyed.” Mich. Comp. Laws § 566.19 (1998). Consequently, the United States may look only to Jerry Sumpter’s interest in the asset— one-half its value — to satisfy its claim. See United States v. Craft, 535 U.S. 274, 288, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002) (holding that a federal tax lien attaches to the delinquent taxpayer’s interest in property held by the taxpayer and an innocent spouse by the entireties under 26 U.S.C. § 6231); United States v. Rodgers, 461 U.S. 677, 689-94, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983) (holding that although 26 U.S.C. § 6321 allowed the government to force a sale of jointly held homestead property to satisfy the tax obligation of one of the joint tenants, the government must take steps to compensate the nondelinquent spouse for her interest in the property); United States v. Certain Real Property Located at 2525 Leroy Lane, West Bloomfield, Mich, 910 F.2d 343, 349 (6th Cir.1990) (acknowledging that the government could prosecute a forfeiture proceeding against property held by the entireties but providing that it would have a lien on the property only to the extent oí the value of the wrongdoer’s interest). In addition, the plaintiffs argue that even if the conveyance of any of the property to the Trust is set aside as fraudulent, they -" }, { "docid": "10520154", "title": "", "text": "II and III, V, IV, VI and VII, VIII and IX. . Article Eighth of the Trust provide that it could be amended from time to time by its incumbent trustee with the consent of the Debtor by an instrument in writing acknowledged by the trustees and attached to the trust instrument. The amended Article VIII provided: This Trust shall be irrevocable. However, the Trustees shall have the right to amend any of the administrative provision of this instrument, provided, however, that no such amendment shall increase or decrease the beneficial interest of any person hereunder. Such amendment shall be by instrument in writing, acknowledged by the Trustees and attached to this instrument. No exercise of the power of alteration or amendment granted hereunder shall exhaust it. No person, trustee or corporation dealing with the Trustee shall be bound by such alteration or amendment unless written notice thereof, signed by the Trustees, shall be delivered to such person, trustee or corporation. . Because it is undisputed that the Debtor is a lifetime beneficiary of the Buttonwood Trust, the Trustee potentially can sell that interest. According to the Court in Markham v. Fay, 74 F.3d 1347 (1st Cir.1996), In Massachusetts, a trust cannot be terminated in order to pay a creditor at any time earlier than the terms of the trust provide, at least where there are beneficiaries other than the debtor. Fay's beneficial right to receive an annual share of net earnings can, however, be executed upon in one of two ways. First, even though it ordinarily could not be reached and applied \"until a future time or is of uncertain value,” it can be reached and applied \"if the value can be ascertained by sale, appraisal or by any means within the ordinary procedure of the court.” Mass. Gen. L. ch. 214 § 3(6). Thus, Fay's right to receive annual distributions from net earnings conceivably could be sold and the proceeds paid to the IRS if its value could be ascertained and a buyer found. Alternatively, her share of net earnings could be paid to the IRS as it" }, { "docid": "6374693", "title": "", "text": "was premised upon federal tax assessments made against Fay under 26 U.S.C. §§ 6671 and 6672 for her willful failure as a responsible person to collect, truthfully account for and pay over to the United States, the income and F.I.C.A. taxes withheld from the wages of employees of various nursing homes held in the name of Louis Almeida. The United States takes the position that its federal tax liens against Fay attached “upon all property and rights to property, whether real or personal, belonging to” her pursuant to 26 U.S.C. § 6321. To digress momentarily for contextual purposes, Fay was the president, treasurer and sole stockholder of the corporate defendant (at least for a period of time), and was also the settlor, trustee and a beneficiary of each of the defendant trusts. The principal asset of the defendant corporation and trusts were nursing homes which, in 1976, Fay caused to be transferred to Louis Almeida. Fay, on behalf of the defendant corporation and trusts, took back mortgages on the properties from Almeida. These are the nursing homes that were ultimately sold by the trustee in bankruptcy and the source of the interpled fund. The basis for the government’s claim in the instant case is twofold. First it is alleged that Fay retained such significant powers under the terms of the three defendant trusts to use the trust assets for her own benefit that the United States, as a creditor of Fay, can reach the assets of the defendant trusts, i.e., the interpled fund, to satisfy Fay’s federal tax liabilities established by the judgment and secured by the federal tax liens against Fay. Second, the United States contends that the corporate and trust defendants are alter egos, instrumentalities or nominees of Fay such that their assets are in fact Fay’s assets and, therefore, subject to the federal tax liens that arose pursuant to 26 U.S.C. § 6321. A three day non-jury trial was held during November of 1993. Following the receipt of the trial transcripts, the parties filed proposed findings of fact and conclusions of law (## 115, 117) as well" }, { "docid": "21292487", "title": "", "text": "States, 326 U.S. 265 (1945) ; Corwin Consultants, Inc. v. Interpublic Group of Companies, Inc., 375 F. Supp. 186, 193 (S.D. N.Y. 1974), reversed and remanded on another question, 512 F. 2d 605 (2d Cir. 1975); United States v. Blackett, 220 F. 2d 21 (9th Cir. 1955). Clearly under § 6321 we must hold that plaintiff’s argument cannot be sustained. In Glass City Bank v. United States, supra at 267-69, the Court stated that there “is a plain intent to subject to the lien ‘property owned by the delinquent’ when suit is filed, rather than only that owned when the lien arose” and also: “Our conclusion is that the lien applies to property owned by the delinquent at any time during the life of the lien. This is in accord with all the cases that have directly passed upon this question.” [Footnote omitted.] In Seaboard Surety Co. v. United States, 306 F. 2d 855 (9th Cir. 1962), the taxpayer was awarded a Government contract on December 31, 1956. On March 2,1957, a trust agreement was executed assigning the proceeds of the contract to a bank, Prior to the date of the agreement the Government had a fully perfected tax lien on all property and rights to property of the taxpayer. The court stated at 859: * * * These tax liens attached immediately to all rights of taxpayer under the government contract awarded December 31, 1956, including payments whenever- earned. * * * [T]he trust agreement of March 2, 1957, could not displace the tax liens, which had already attached to taxpayer’s property rights in the contract. The fact that taxpayer’s rights under the contract were dependent upon its performance did not affect the tax liens * * *. In United States Fidelity & Guaranty Co. v. United States, 201 Ct. Cl. 1, 475 F. 2d 1377 (1973), this court held that where the IRS was owed taxes by a defaulted prime contractor and the amount was paid to the IRS by the contracting agency out of retained contract funds, the tax lien has priority over a surety that has" }, { "docid": "10213870", "title": "", "text": "plans contain no provision by which Raihl’s interest could ever be distributed to other employees. The “unqualified contractual right to receive property is itself a property right,” even though the right to payment has not yet matured. United States v. National Bank of Commerce, 472 U.S. 713, 725, 105 S.Ct. 2919, 2927, 86 L.Ed.2d 565 (1985) (quoting St. Louis Union Trust Co. v. United States, 617 F.2d 1293, 1302 (8th Cir.1980)). The inalienability of the pension interests does not destroy their character as property or immunize the interest from the attachment of a federal tax lien. United States v. Rye, 550 F.2d 682, 685 (1st Cir.1977); Leuschner v. First Western Bank and Trust Co., 261 F.2d 705, 708 (9th Cir.1958). The right to receive periodic payments is a right to which a tax lien may attach. Fried v. New York Life Ins. Co., 241 F.2d 504, 505 (2nd Cir.) cert. denied, 354 U.S. 922, 77 S.Ct. 1382, 1 L.Ed.2d 1437 (1957). Further, ERISA qualified pension interests have been held to be “property or rights to property” within the meaning of 26 U.S.C. § 6321. In re Perkins, 134 B.R. 408 (Bankr.E.D.Cal.1991); In re Reed, 127 B.R. 244, 246 (Bankr.D.Haw.1991). As the bankruptcy court noted, the Raihls erroneously rely on Little v. United States, 704 F.2d 1100, 1106 (9th Cir.1983) for a “two part test” to determine whether a property right exists. Little is not relevant here, it simply states the test developed in California to determine whether property or property rights arise under applicable California law. Little held that a federal tax lien attached to redemptive rights in real property and did not involve attachment to 401(k) plans. Id. The Raihls also argue that the subject pensions are not property of the estate. Whether this property interest is property of the estate is another question entirely— one that is not relevant for this appeal. Essentially, the Raihls argue that because this pension qualifies as a spendthrift trust which is excluded from property of the estate or is exempted from property of the estate, it cannot be subjected to a federal" }, { "docid": "10520155", "title": "", "text": "Buttonwood Trust, the Trustee potentially can sell that interest. According to the Court in Markham v. Fay, 74 F.3d 1347 (1st Cir.1996), In Massachusetts, a trust cannot be terminated in order to pay a creditor at any time earlier than the terms of the trust provide, at least where there are beneficiaries other than the debtor. Fay's beneficial right to receive an annual share of net earnings can, however, be executed upon in one of two ways. First, even though it ordinarily could not be reached and applied \"until a future time or is of uncertain value,” it can be reached and applied \"if the value can be ascertained by sale, appraisal or by any means within the ordinary procedure of the court.” Mass. Gen. L. ch. 214 § 3(6). Thus, Fay's right to receive annual distributions from net earnings conceivably could be sold and the proceeds paid to the IRS if its value could be ascertained and a buyer found. Alternatively, her share of net earnings could be paid to the IRS as it comes due annually according to the terms of the trust. 74 F.3d at 1366 (citations omitted). . Specifically, he distinguishes Riley v. Decoulos (In re Am. Bridge Products, Inc.), 328 B.R. 274, 351-52 (Bankr.D.Mass.2005), aff'd in part, rev'd in part, 398 B.R. 724 (D.Mass.2009), vacated, 599 F.3d 1 (1st Cir.2010), in which this Court observed: If the Trustee asserts claims on behalf of creditors of the bankruptcy estate of ABP, she lacks standing because the claims belong to the creditors, not the estate. Section 704(1) of the Bankruptcy Code authorizes the Trustee to “collect and reduce to money the property of the estate for which such trustee serves....” 11 U.S.C. § 704(1). For purposes of § 704(1), causes of action which belonging to the debtor are included as property of the estate under 11 U.S.C. § 541(a)(1). See Schertz-Cibolo-Universal City, Ind. School Dist. v. Wright (In re Matter of Educators Group Health Trust), 25 F.3d 1281, 1284 (5th Cir.1994); Mixon v. Anderson (In re Ozark Rest. Equip. Co.), 816 F.2d 1222, 1225 (8th Cir.1987), cert." }, { "docid": "13386813", "title": "", "text": "the funds securing the bond may necessarily diminish any interest Mr. Coluccio had in it. Indeed, if under New York law, Ms. Coluccio “owns” the funds securing the bond, then the execution upon the funds underlying the bond by the Government would be limited to the extent that her ownership interest would require. See 28 U.S.C. § 3010(a) (“The remedies available to the United States under [the FDCPA] may be enforced against property which is co-owned by a debtor and any other person only to the extent allowed by the law of the State where the property is located.”). As we have noted, supra, Ms. Coluccio has alleged facts, which if proven, would demonstrate that she is the beneficiary of a constructive trust on the funds securing the cost bond. If she were the beneficiary of such a trust, then she would be “the equitable owner” of those funds. See I William F. Fratcher, Scott on Trust § 12.1 (4th ed. 1987). In such circumstances, Mr. Coluccio, as “trustee” of those funds, would not have a sufficiently significant interest in the res to warrant the Government executing against the funds. Accordingly, it is necessary to remand this case to the district court to determine if Ms. Coluccio has a constructive trust with respect to the funds securing the cost bond. CONCLUSION We vacate the district court’s order denying claimant’s request to have the $2,500 cost bond returned to her and remand to the district court for further proceedings. . Mr. Coluccio moved, inter alia, to have his fine reduced pursuant to Fed.R.Crim.P. 35, on March 26, 1993. The district court (Glasser, J.) reduced the principal amount of the fine to $125,000. This Court affirmed. United States v. Coluccio, 9 F.3d 1536 (2d Cir.1993). . In addition, Mr. Coluccio pleaded guilty on January 6, 1987 in Suffolk County Court, to a drug charge and weapons charge in violation of N.Y.Penal Law §§ 220.41 & 265.03, respectively. He was sentenced to eight years to life for the drug charge and four years to life for the weapons charge, and the sentences were" }, { "docid": "10213871", "title": "", "text": "property” within the meaning of 26 U.S.C. § 6321. In re Perkins, 134 B.R. 408 (Bankr.E.D.Cal.1991); In re Reed, 127 B.R. 244, 246 (Bankr.D.Haw.1991). As the bankruptcy court noted, the Raihls erroneously rely on Little v. United States, 704 F.2d 1100, 1106 (9th Cir.1983) for a “two part test” to determine whether a property right exists. Little is not relevant here, it simply states the test developed in California to determine whether property or property rights arise under applicable California law. Little held that a federal tax lien attached to redemptive rights in real property and did not involve attachment to 401(k) plans. Id. The Raihls also argue that the subject pensions are not property of the estate. Whether this property interest is property of the estate is another question entirely— one that is not relevant for this appeal. Essentially, the Raihls argue that because this pension qualifies as a spendthrift trust which is excluded from property of the estate or is exempted from property of the estate, it cannot be subjected to a federal tax' lien. We disagree. See In re Perkins, 134 B.R. 408 (Bankr.E.D.Cal.1991) (federal tax lien was enforceable against debtor’s interest in a spendthrift trust irrespective of its exempt status). As the court stated in Perkins: [T]he Ninth Circuit has specifically held that while a spendthrift clause may be effective to shield attachment and levy by general creditors 'against a beneficiary’s interest in a trust, such shield is unavailing to attachment and levy of a federal tax lien. See Leuschner v. First Western Bank and Trust Co., 261 F.2d 705 (9th Cir.1958). In addition, Congress has expressly indicated that even where a debtor may choose to exempt rights to a pension under section 522(d)(10)(E)(iii), such exemption does not affect a federal tax lien. Perkins, at 411. Section 522(c)(2)(B) provides that property exempted under § 522 is subject to a tax lien. See Perkins, at 411. The Raihls also assert that applicable Revenue Rulings and Treasury Regulations establish that the IRS cannot execute against a pension that is not in pay status. But execution is not at" }, { "docid": "3712126", "title": "", "text": "591 (1973). Property conveyed to a trustee is subject to the terms of the trust. A beneficiary’s interest is determined under state law. Whether a Federal Tax Lien attaches to the interest, as property or the right to property, is a matter of federal law. Aquilino v. United States, 363 U.S. 509, 513-14, 80 S.Ct. 1277, 1280-81, 4 L.Ed.2d 1365 (1960). Federal law “creates no rights but merely attaches consequences, federally defined, to rights created under state law.” United States v. Bess, 357 U.S. 51, 55, 78 S.Ct. 1054, 1057, 2 L.Ed.2d 1135 (1958). “[I]ncome from a spendthrift trust is not immune from federal tax liens, notwithstanding any state laws ...” First Northwestern Trust Co. v. Internal Revenue Service, 622 F.2d 387 (8th Cir.1980) (citations omitted). Restraints on transferability with respect to spendthrift trusts, “whether arising from the trust instrument or from state law do not insulate the beneficiary’s interest from a federal tax lien,” United States v. Rye, 550 F.2d 682, 685 (1st Cir.1977), citing United States v. Dallas National Bank, 152 F.2d 582, 585 (5th Cir.1945) and Mercantile Trust v. Hofferbert, 58 F.Supp. 701, 705 (D.Md.1944). a) The Spray Trust and the Revocable Trusts The Spray and the Revocable Trusts are spendthrift trusts subject to the trustees’ discretion in distribution of income. Zeoli v. Commissioner of Social Services, 179 Conn. 83, 425 A.2d 553 (1979); Conn.Gen.Stat. § 52-321. As such, Cohn had but an expectancy under state law. Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987). A taxpayer’s interest in a discretionary trust was subject to a tax levy where the order was that the trustee “shall pay” to beneficiaries, the time and amount to be within the trustee’s discretion, the trustee being obliged to make some payment to the taxpayer. Magavern v. United States, 550 F.2d 797, 802 (2d Cir.), cert. denied, 434 U.S. 826, 98 S.Ct. 74, 54 L.Ed.2d 84 (1977) (New York law). Here the trustees were not obliged to make equal payments, no significance was to attach to the fact that a beneficiary could thereby be totally deprived of any benefit and" }, { "docid": "13263547", "title": "", "text": "the fund deposited by NRSC is capable, the remaining tax liability of COOP, plus interest as provided by law, that was incurred under the October 1970 and February 1971 tax assessments and liens. The tax liability, plus interest, owing is presently in an amount in excess of the fund held by this Court. (See Government’s Proposed Findings of Fact and Conclusions of Law, pp. 2-3.) The Government, therefore, is entitled to the entire fund. Accordingly, let judgment be entered for the United States. . Under 20 U.S.C. § 6322, a tax lien pursuant to § 6321 arises at the time the assessment is made. The lien attaches to all property and rights to property at the time it arises. See United States v. Fidelity Philadelphia Trust Co., 459 F.2d 771 (3rd Cir. 1970) ; Kuffel v. United States, 103 Ariz. 321, 441 P.2d 771 (1968). Thus, the date upon which the tax lien will attach, if at all, is the date of the assessment. See Bank of Nevada v. United States, 251 F.2d 820 (9th Cir. 1958), cert. denied 356 U.S. 938, 78 S.Ct. 780, 2 L.Ed.2d 813 (1958). . This provision is unchanged from its predecessor (IB.S Code of 1939, § 3670) and was not altered by the 1966 Federal Tax Lien Act. . In Durham Lumber, the Supreme Court affirmed the holding of the Fourth Circuit (United States v. Durham Lumber Co., 257 F.2d 570 (4th Cir. 1958)) that because the general contractors, under North Carolina law, had no property interest in the amount due under the general construction contract, except to the extent that such amount exceeded the aggregate of all amounts due to subcontractors, the Government, pursuant to its tax lien, could recover only so much of the construction price as would remain unpaid after deduction of a sum sufficient to pay the subcontractors. The Ninth Circuit has rephrased in the affirmative the prerequisite to attachment of a tax lien: “. . . If state law raises the taxpayer’s interest to the status of property or rights to property, federal law will cause a lien to" }, { "docid": "15485564", "title": "", "text": "80, 626, 60 S.Ct. 424, 426, 84 L.Ed. 585, 1035, “state law creates legal interests and rights,” therefore, whether or not the cestui que trust here has been given any property or rights thereto' in the trust which may be subjected to lien, must be determined by the law of Texas. 42 Tex.Jur. § 27, page 628, states that “the extent of the beneficiary’s interest is determined by interpretation of the settlor’s language.” Mrs. Shumard devised her Main Street property in Dallas,. Texas, to her executor and trustee, in trust for taxpayer and other named beneficiaries, “the net revenues” of the trust property to be distributed to the beneficiaries each month. Therefore, Mrs. Maxwell has not the title to the corpus of the trust, but is to receive only a proportionate part of the net revenues. Although the testatrix intended to create an estate which would not be subject to seizure, sale, or execution for debts of any kind or character by placing such restraint upon the corpus and income, and such provisions in a will are valid under the Texas law and are respected by the courts, this would not prevail against the fastening of a lien by the Federal Government for unpaid taxes on any property owned by the delinquent taxpayer. We held in Shambaugh v. Scofield, 5 Cir., 132 F.2d 345, that the provision of the Texas Constitution exempting homesteads from forced sale did not operate to exempt a Texas homestead from a sale to satisfy a federal income tax lien. Having been enacted within the scope of the power delegated to the Federal Government, the Internal Revenue statutes are a part of the supreme law of the land. If they are in conflict with State law, constitutional or statutory, the latter must yield. The provisions of the will of an individual which seek to exempt from debts property bequeathed for the benefit of another cannot rise higher than a statutory or constitutional exemption provided by a State. Mrs. Maxwell has no title to the corpus of any property other than the profits after they have accrued" }, { "docid": "7600723", "title": "", "text": "appeal, is squarely presented by Orr’s case, because the only way the IRS can collect from Orr’s trust distributions is if the tax lien on future distributions attached before Orr’s personal liability was discharged through bankruptcy. With the issue now squarely presented, fifty-one years later, we conclude that the dictum announced by Judge Holmes was correct. Texas law recognizes the validity of the Trust’s spendthrift clause. Texas law acknowledges that a spendthrift trust beneficiary possesses an equitable ownership interest in the trust corpus. And Texas law respects the Trust’s bestowal upon Orr of a fully vested right to receive distributions from the trust on at least an annual basis. These interests constitute “property” or “rights to property” under § 6321, even though the beneficiary does not possess total, exclusive, fee-simple ownership. The broad scope of 26 U.S.C. § 6321, encompasses “property” in this sense, as befits that statute’s purpose of tax collection, see National Bank of Commerce, 472 U.S. at 719-20, 105 S.Ct. at 2923-24. Courts have routinely concluded that § 6321 tax liens attach to other types of equitable interests. See, e.g., Southern Bank v. IRS, 770 F.2d 1001, 1003, 1009-10 (11th Cir.1985) (equitable right of redemption); Runkel v. United States, 527 F.2d 914, 916 (9th Cir.1975) (equitable interest in real property); United States v. Johansson, 447 F.2d 702, 705 (5th Cir.1971) (equitable lien); United States v. Klimek, 952 F.Supp. 1100, 1112 (E.D.Pa.1997) (equitable ownership of real property); Bank of Lyons v. Cavanaugh (In re Cavanaugh), 153 B.R. 224, 228 (Bankr.N.D.Ill.1993) (equitable interest in a land trust). Moreover, the attachment of the lien in this case is not at odds with the Texas policy of respecting the wishes of the creator of a spendthrift trust by enforcing the trust’s anti-alienation provisions. The wishes of the creator of the spendthrift trust are to ensure a stream of income for the beneficiary by preventing the beneficiary from leveraging present purchasing power out of future payments. The state may (and Texas does) think it advisable to respect the wishes of the creator of the trust by enforcing the spendthrift term. Creditors in" }, { "docid": "10213869", "title": "", "text": "federal tax lien. We disagree. In Alaska, property is defined by statute and includes real and personal property. “Personal property” is defined in Alaska Stat. 01.10.060(9) to include money, goods, chattels, things in action, and evidences in debt. Raihl clearly possesses such a property interest. Raihl had a fully vested interest in the Savings and Investment account which showed an amount of $99,767 as of August 1, 1990. Raihl had an interest in the Pension Plan which was also fully vested as of the petition date, the exact amount of which is subject to change depending upon whether Raihl takes early, normal or late retirement. While there are restrictions on immediate withdrawal , as are customarily found on pensions of these types, Raihl’s interest nonetheless constitutes a “right to property.” Raihl had a right to substantial pension payments immediately, at the time of the petition, if he should elect early retirement at that time. The subject plans hold a sum in trust, in a discrete account, in which Raihl has a present, vested interest. The plans contain no provision by which Raihl’s interest could ever be distributed to other employees. The “unqualified contractual right to receive property is itself a property right,” even though the right to payment has not yet matured. United States v. National Bank of Commerce, 472 U.S. 713, 725, 105 S.Ct. 2919, 2927, 86 L.Ed.2d 565 (1985) (quoting St. Louis Union Trust Co. v. United States, 617 F.2d 1293, 1302 (8th Cir.1980)). The inalienability of the pension interests does not destroy their character as property or immunize the interest from the attachment of a federal tax lien. United States v. Rye, 550 F.2d 682, 685 (1st Cir.1977); Leuschner v. First Western Bank and Trust Co., 261 F.2d 705, 708 (9th Cir.1958). The right to receive periodic payments is a right to which a tax lien may attach. Fried v. New York Life Ins. Co., 241 F.2d 504, 505 (2nd Cir.) cert. denied, 354 U.S. 922, 77 S.Ct. 1382, 1 L.Ed.2d 1437 (1957). Further, ERISA qualified pension interests have been held to be “property or rights to" }, { "docid": "12718175", "title": "", "text": "United States v. Overman, 424 F.2d 1142, 1145 (9th Cir. 1970). Plaintiff contends, however, that our decisions in United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973), and Jones v. Kemp, 144 F.2d 478 (10th Cir. 1944), govern the instant case and preclude the attachment of a federal tax lien on homestead property. Hershberger was an action brought by the United States to foreclose on the Kansas homestead of a husband and wife to satisfy the unpaid tax liability of the husband. We refused to order sale of the property, holding that “[wjhile [the wife] is living on the property, the government may not enforce its tax lien against the homestead.” 475 F.2d at 682. Previously in Jones we said that “a wife is granted an indivisible and vested interest in homestead property, and one which cannot be subjected to levy and sale for the satisfaction of the Federal tax liability of her husband.” 144 F.2d at 480. We went on to hold, however, that the husband’s property was not exempt from sale because the common-law marriage purporting to create the homestead right failed to ripen into a legal marriage under Oklahoma law. In neither Hershberger nor Jones was the propriety of attaching a lien to the husband’s interest in homestead property at issue. Those cases dealt solely with foreclosure. In holding for plaintiffs here, the district court erred by not drawing a distinction between the attachment of a federal tax lien pursuant to section 6321 and its enforcement in a foreclosure action pursuant to 26 U.S.C. § 7403. Congress has provided that in a foreclosure action brought under section 7403, a court may decree a sale of any property subject to a tax lien. Consequently, we held in Hershberger that a court has equitable discretion to decide whether to order foreclosure. But no such discretion lies under section 6321. It provides that a lien shall attach to all the property of a delinquent taxpayer. Thus, the inquiry ends once it is determined that the husband has a property interest, of whatever extent, in the homestead. Indeed, Hershberger itself" } ]

[ { "docid": "19652741", "title": "", "text": "there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ Dutton v. Evans, supra, at 89, and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement/ California v. Green, supra, at 161. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these ‘indicia of reliability.’ ” 408 U. S., at 213. The Court has applied this “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” Mattox v. United States, 156 U. S., at 244. This reflects the truism that “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, 399 U. S., at 155, and “stem from the same roots,” Dutton v. Evans, 400 U. S. 74, 86 (1970). It also responds to the need for certainty in thé workaday world of conducting criminal trials. In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a -firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. III We turn first to that aspect of confrontation analysis deemed dispositive by the Supreme Court of Ohio, and answered by it in the negative — whether Anita Isaacs’ prior testimony at the preliminary hearing bore sufficient “indicia of reliability.” Resolution of this issue requires a careful comparison of this case to California v. Green, supra. A In Green, at the preliminary hearing, a youth named Porter identified Green as a drug supplier. When" } ]

[ { "docid": "16989027", "title": "", "text": "for which the prior act evidence could be used. In addition, the court gave the limiting instruction both at the time the evidence was admitted and at the end of the ease, instructing the jury not to “consider any of this evidence in deciding if the defendant committed the acts charged in the indictment.” We conclude that the instruction was adequate. Thus, the rape statement is admissible under Rule 404(b) because all four requirements were met. c. The Confrontation Clause Joe finally asserts that the admission of the rape statement was improper because it violated his rights under the Confrontation Clause. The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him_” U.S. Const, amend. VI. The Supreme Court has “consistently held that the Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause.” Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990). However, the clause does “bar[] the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Wright, 497 U.S. at 814, 110 S.Ct. at 3146. The Supreme Court has determined that a statement admissible under an exception to the hearsay rule does not violate the Confrontation Clause if the statement “bears adequate ‘indicia of reliability’ ”. Id. (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). The “in-dicia of reliability” requirement may be satisfied in two ways. Reliability is assumed if the evidence is admitted under a “firmly rooted hearsay exception.” Id., 497 U.S. at 815, 110 S.Ct. at 3146. Otherwise, reliability is established if the evidence is supported by “particularized guarantees of trustworthiness.” Id. Federal Rule of Evidence 803(4), the exception to the hearsay rule for statements made for purposes of medical diagnosis or treatment, is undoubtedly a firmly rooted hearsay exception. See White v. Illinois, — U.S.—,—n. 8," }, { "docid": "22243951", "title": "", "text": "to confront a witness against him, the Confrontation Clause is satisfied if the prosecution establishes that (1) the hearsay declarant is unavailable, id. at 65, 100 S.Ct. at 2538-39, and (2) the hearsay statement bears the “indicia of reliability” necessary to give the jury a sufficient basis for evaluating the verity of the earlier statement. Id. at 65-66, 100 S.Ct. at 2538-39. The Supreme Court has stated “that the ‘indicia of reliability’ requirement could be met in either of two circumstances: where the hearsay statement ‘falls within a firmly rooted hearsay exception,’ or where it is supported by ‘a showing of particularized guarantees of trustworthiness.’ ” Idaho v. Wright, 497 U.S. 805, 816, 110 S.Ct. 3139, 3147, 111 L.Ed.2d 638 (1990) (quoting Roberts, 448 U.S. at 66, 100 S.Ct. at 2539). “Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.” Id. at 817, 110 S.Ct. at 3147. However, where hearsay exceptions are admitted under an exception that is not firmly-rooted, they are presumptively unreliable and inadmissible for Confrontation Clause purposes and must be excluded absent particularized guarantees of trustworthiness. Roberts, 448 U.S. at 66,100 S.Ct. at 2539. These guarantees of trustworthiness must be such that the evidence is equally reliable as evidence admitted under a firmly rooted hearsay exception to ensure that confrontation through cross-examination would add little to its believability. Wright, 497 U.S. at 821, 110 S.Ct. at 3149-50 (citation omitted). See United States v. Strickland, 935 F.2d 822, 831 (7th Cir.) (“[Section] 3505 did not change the benchmark question in this and every situation involving the admission of documentary evidence: do the documents bear the indicia of reliability?”), cert. denied, — U.S. -, 112 S.Ct. 324, 116 L.Ed.2d 265 (1991), and cert. denied, — U.S. -, 112 S.Ct. 884, 116 L.Ed.2d 787 (1992). The admission of business records pursuant to Rule 803(6) is a firmly-rooted exception to the hearsay rule and therefore does not violate the Confrontation Clause. Bourjaily v. United States, 483 U.S." }, { "docid": "20701298", "title": "", "text": "Donnie refused to testify at trial. Therefore, we find that the grand jury testimony in this case is admissible under the catch-all exception. This does not end our inquiry, however, because incriminating statements that are admissible under an exception to the hearsay rule are nonetheless inadmissible under the Confrontation Clause unless the prosecution either produces the declarant for cross-examination or demonstrates both that the declarant is unavailable and that the statement bears adequate indicia of reliability. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3145-46, 111 L.Ed.2d 638 (1990). As the Supreme Court has stated, “[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). This reliability requirement can be met where a statement either falls within a firmly rooted hearsay exception or is supported by a showing of particularized guarantees of trustworthiness. Id. Once again, we note that Donnie was clearly unavailable as a witness under Rule 804(a)(2). Next, assuming that no firmly rooted hearsay exception applies here, we must consider whether Donnie’s testimony had particularized guarantees of trustworthiness. Such guarantees of trustworthiness must “be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.” Wright, 497 U.S. at 820, 110 S.Ct. at 3149. However, evidence corroborating the truth of a hearsay statement is not relevant to a finding of trustworthiness. Id. at 822, 110 S.Ct. at 3150. Under these stringent requirements, we, nonetheless, find that Donnie’s grand jury testimony was supported by guarantees of trustworthiness sufficient to warrant its admission without an opportunity for confrontation. We note that Donnie’s testimony was given under oath. Carlson, 547 F.2d at 1354. Although Donnie was at first reluctant to implicate his father, he eventually chose to explain the events surrounding the store burning, stating that he was only offering the testimony because it was the right" }, { "docid": "1769593", "title": "", "text": "offenses; and, most relevant to this appeal, lack of a fair trial and violation of his Sixth Amendment confrontation right by the admission of Ash’s statements. A federal magistrate judge recommended denying Fulcher’s petition. He found that although Fulcher had preserved his Sixth Amendment challenge, habeas relief was inappropriate because the Kentucky Supreme Court’s decision was neither “clearly contrary to” nor “an unreasonable application of’ the United States Supreme Court precedent in Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The district court accepted the magistrate’s recommendations, dismissed Fulcher’s petition, and denied his request for a certificate of appealability. On September 3, 2003, Fulcher filed his notice of appeal, followed by a request for a certificate of appealability from this court. On August 19, 2004, this court granted Fulcher the certificate “regarding the issue of whether his rights under the Confrontation Clause were violated when a tape-recorded statement was admitted into evidence.” Preservation of his Sixth Amendment Argument. Because Kentucky contends that Fulcher has waived the Confrontation Clause challenge he raises in this appeal, we consider his filings with respect to the issue. Prior to trial, Fulcher filed a motion in limine to exclude Ash’s statements, arguing, among other things, that their admission would violate his Confrontation Clause right as defined by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (holding that the Sixth Amendment requires that hearsay statements have “indicia of reliability” — i.e., either fall into a “firmly rooted hearsay exception” or have “particularized guarantees of trustworthiness”), Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (holding that inculpatory hearsay statements by accomplices are “presumptively unreliable”), and Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (holding that to have “particularized guarantees of trustworthiness,” hearsay evidence “must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial”). Fulcher also cited the Kentucky case of Taylor v. Commonwealth, 821 S.W.2d 72 (Ky.1990), which allowed an unavailable party’s confession to be" }, { "docid": "21626997", "title": "", "text": "13 L.Ed.2d 923 (1965). The Confrontation Clause does not prohibit the admission of all hearsay evidence. Idaho v. Wright, 497 U.S. 805, 813-14, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). Although “a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, [the Supreme] Court has rejected that view as ‘unintended and too extreme.’ ” Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (quoting Roberts, 448 U.S. at 63, 100 S.Ct. 2531). “[T]here has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.” Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). That is because “the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.” Id. Where hearsay evidence is offered, and that evidence consists of testimony by an unavailable declarant, the Confrontation Clause requires that the proponent (here the Commonwealth) show that the transcribed testimony from the preliminary judicial hearing bears adequate “indicia of reliability,” sufficient to offset the lack of cross-examination. Roberts, 448 U.S. at 65-66, 100 S.Ct. 2531 (quoting Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (plurality)); see also Wright, 497 U.S. at 815-25, 110 S.Ct. 3139 (applying the Roberts framework); 2 McCormick on Evidence § 252, at 123-24 (J.W. Strong ed., 5th ed.1999) (outlining, the Confrontation Clause’s standard for admission of prior testimony). Adequate indicia are shown if the proffered testimony “falls within a firmly rooted ... exception” to the hearsay prohibition or if the proponent of the evidence makes a showing of “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531. If the testimony is within a firmly rooted hearsay exception, then it has adequate indicia of reliability, without more. White v. Illinois, 502 U.S. 346, 355 n. 8, 112" }, { "docid": "1769690", "title": "", "text": "the requirements of the Confrontation Clause.’ ” Wright, 497 U.S. at 815, 110 S.Ct. 3139 (citing Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). Roberts set forth two ways in which the “indicia of reliability” requirement could be met: 1) where the hearsay statement “falls within a firmly rooted hearsay exception,” or 2) where it is supported by “a showing of particularized guarantees of trustworthiness.” Id. at 816, 110 S.Ct. 3139 (citing Roberts, 448 U.S. at 66, 100 S.Ct. 2531); see also Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (“Even if certain hearsay evidence does not fall within ‘a firmly rooted hearsay exception’ and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a ‘showing of particularized guarantees of trustworthiness.’ ”) (footnote and citation omitted). 1. Statement Against Penal Interest Is Not a Firmly Rooted Hearsay Exception Respondent argues that a statement against penal interest is, alternatively, either a “firmly rooted hearsay exception,” or that the state of the law in 1996 was ambiguous enough to preclude this Court from finding that a state court’s determination as such in 1996 was “contrary to” clearly established Supreme Court precedent. At this stage of this analysis, however, this Court has established that the Supreme Court of Kentucky’s application of the Taylor criteria was “contrary to” clearly established precedent. See supra. AEDPA, therefore, does not require that this Court defer to the Supreme Court of Kentucky’s reasoning or conclusions on this issue inasmuch as they pertain to matters of constitutional law. Rather, this Court analyzes the admissibility of the statement de novo, treating the Roberts analysis as the first step in its harmless error review — ie., was the Supreme Court of Kentucky’s application of a constitutionally infirm test merely “harmless error”? That is, would the admissibility of the statement have been upheld under the correct legal theory? If we find the statement inadmissible, we next ask whether the improper admission undermines confidence in the outcome" }, { "docid": "7696310", "title": "", "text": "also Myatt v. Hannigan, 910 F.2d 680, 685 (10th Cir.1990) (hearsay declarations of child sexual abuse victim). Consequently, we accord deference to the state courts’ factual findings regarding the timing, manner and circumstances of the hearsay statements. We review de novo the ultimate determination that the Swans’ Confrontation Clause rights were not violated. B. Sufficient Indicia of Reliability The Confrontation Clause and the hearsay rule are not coextensive. Although both protect similar values, each sets independent prohibitions on admissibility. See Ohio v. Roberts, 448 U.S. 56, 62-65, 100 S.Ct. 2531, 2537-39, 65 L.Ed.2d 597 (1980). The Clause does not necessarily bar the admission of hearsay statements. Most evidence that falls under a recognized hearsay exception may be admitted without confrontation because of its presumed trustworthiness. But the Clause may prohibit introducing some evidence that otherwise would be admissible under a hearsay exception. Idaho v. Wright, 497 U.S. 805, 813-14, 110 S.Ct. 3139, 3145-46, 111 L.Ed.2d 638 (1990). A statement falling under an exception will also be admissible under the Clause if the prosecution demonstrates the unavailability of the declarant and that the statement bears adequate “indicia of reliability.” Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. The Swans do not contest the trial court’s determination that the children were' incom-; petent to testify and “unavailable” for hearsay purposes. The crux of this appeal is whether the incriminating statements bore sufficient “indicia of reliability” to withstand scrutiny under the Clause. The reliability requirement is satisfied if a statement falls within a “firmly rooted hearsay exception” or if it is supported by “a showing of particularized guarantees of trustworthiness.” Wright, 497 U.S. at 818, 110 S.Ct. at 3148. The trial court admitted the statements under Washington’s child sexual abuse hearsay exception. Enacted in 1982, this exception is relatively new and not firmly rooted. As the statements were admitted under a nontraditional exception, the state, as proponent of the evidence, had the burden to demonstrate reliability by showing “particularized guarantees of trustworthiness.” The proof is based on consideration of the totality of the circumstances but “the relevant circumstances include only those that" }, { "docid": "1769689", "title": "", "text": "a criminal defendant. In Vincent v. Seabold, 226 F.3d 681 (6th Cir.2000), this Court held that the trial court’s reliance on Taylor resulted in a result “contrary to” clearly established Supreme Court precedent, id. at 684-85, 689. While the Vincent panel did not elaborate on the particulars of the Taylor test, its ultimate finding demonstrates the constitutional infirmity of Taylor’s ongoing application by the Kentucky courts in these circumstances. Because the Supreme Court of Kentucky used a legal standard manifestly “contrary to” clearly established federal law, this Court reviews the admissibility of Ash’s statement de novo. Williams, 529 U.S. at 413, 120 S.Ct. 1495 (“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite that reached by this Court on a question of law ....”); 28 U.S.C. § 2254(d)(1). D. Ash’s Statement Was Inadmissible Under Roberts “In Ohio v. Roberts, the Supreme Court set forth ‘a general approach for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause.’ ” Wright, 497 U.S. at 815, 110 S.Ct. 3139 (citing Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). Roberts set forth two ways in which the “indicia of reliability” requirement could be met: 1) where the hearsay statement “falls within a firmly rooted hearsay exception,” or 2) where it is supported by “a showing of particularized guarantees of trustworthiness.” Id. at 816, 110 S.Ct. 3139 (citing Roberts, 448 U.S. at 66, 100 S.Ct. 2531); see also Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (“Even if certain hearsay evidence does not fall within ‘a firmly rooted hearsay exception’ and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a ‘showing of particularized guarantees of trustworthiness.’ ”) (footnote and citation omitted). 1. Statement Against Penal Interest Is Not a Firmly Rooted Hearsay Exception Respondent argues that a statement against penal interest is, alternatively, either" }, { "docid": "13251370", "title": "", "text": "but also of the Confrontation Clause of the Sixth Amendment. Finally, the Supreme Court has determined that such statements are “ ‘presumptively unreliable and inadmissible for Confrontation Clause purposes.’ ” Idaho v. Wright, 497 U.S. 805, 818, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (quoting Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)) Although the hearsay rule and the Confrontation Clause protect similar values, see id. at 814, 110 S.Ct. 3139, the Confrontation Clause has a broader reach barring the admission of some evidence that would otherwise be admissible under exceptions to the hearsay rules. See California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Before a statement will be admissible, the prosecution must show that “it bears adequate ‘indicia of reliability.’ ” Wright, 497 U.S. at 814-15, 110 S.Ct. 3139. The “indicia of reliability” requirement can be met if the hearsay statement either falls within a firmly rooted hearsay exception or if it is supported by a showing of “particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). By definition, the residual hearsay exception is not a firmly rooted hearsay exception. See Joseph, 964 F.2d at 1386-87 (citing Wright, 497 U.S. at 817, 110 S.Ct. 3139). The district court found the requisite trustworthiness from other evidence it considered to be corroborating, i.e., by “the locating of the fingerprints of defendant Mr. Mitchell, and his operating the described vehicle [ ] in a short distance away from th[e] area at a later point that afternoon.” App. at 652. In so finding, the district court erred as a matter of law because “under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Wright, 497 U.S. at 822, 110 S.Ct. 3139. “[T]he use of corroborating evidence to support a hearsay statement’s ‘particularized guarantees of trustworthiness’ would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at" }, { "docid": "13251369", "title": "", "text": "was found in Fed.R.Evid. 808(24) and which was transferred to new Rule 807 effective December 1, 1997. There was no substantive change in the transfer, and we will refer to the Rule as it was when considered by the district court. Rule 803(24) provides that a statement not specifically covered by any of the traditional hearsay exceptions is admissible if the court determines that the statement is offered as evidence of a material fact, there is no other obtainable evidence on the issue that is more probative, that the interests of justice will be served by its admission, and that the record reflects “equivalent circumstantial guarantees of trustworthiness ” for the reliability of the statement. Fed.R.Evid. 803(24). The legislative history of Rule 803(24) indicates that Congress “ ‘intended that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances.’” S.Rep. No. 93-1277, Committee on the Judiciary, reprinted in 28 U.S.C.A., Fed.R.Evid. 803, Historical Note, at 276. Furthermore, the statement must not only meet the rigors of the Federal Rules of Evidence, but also of the Confrontation Clause of the Sixth Amendment. Finally, the Supreme Court has determined that such statements are “ ‘presumptively unreliable and inadmissible for Confrontation Clause purposes.’ ” Idaho v. Wright, 497 U.S. 805, 818, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (quoting Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)) Although the hearsay rule and the Confrontation Clause protect similar values, see id. at 814, 110 S.Ct. 3139, the Confrontation Clause has a broader reach barring the admission of some evidence that would otherwise be admissible under exceptions to the hearsay rules. See California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Before a statement will be admissible, the prosecution must show that “it bears adequate ‘indicia of reliability.’ ” Wright, 497 U.S. at 814-15, 110 S.Ct. 3139. The “indicia of reliability” requirement can be met if the hearsay statement either falls within a firmly rooted hearsay exception or if it is supported by a showing of “particularized guarantees of trustworthiness.”" }, { "docid": "16462613", "title": "", "text": "of a twelve-minute videotape of M.T.B.’s previous out-of-court statements to a forensic interviewer violated the confrontation clause of the sixth amendment. The videotaped interview at issue took place after the children had been taken into custody by the South Dakota Department of Social Services following a referral alleging that M.T.B. had been sexually abused and after a preliminary investigation into those allegations. Colleen Brazil, a forensic interviewer, conducted the interview at a center for child evaluation before a physical examination by a doctor. The confrontation clause “does not necessarily prohibit the admission of hearsay statements against a criminal defendant.” Idaho v. Wright, 497 U.S. 805, 813, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). It does, however, bar “the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Id. at 814, 110 S.Ct. 3139. Out-of-court statements incriminating a defendant may not be admitted without violating the confrontation clause unless two requirements are met. First, “the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Second, “if the witness is shown to be unavailable ... his statement is admissible only if it bears adequate ‘indicia of reliability’ ” either because it “falls within a firmly rooted hearsay exception” or it is supported by “a showing of particularized guarantees of trustworthiness.” Id. at 65-66, 100 S.Ct. 2531 (footnote omitted); see also Wright, 497 U.S. at 814, 110 S.Ct. 3139. We have recognized that the admission of hearsay evidence against a criminal defendant generally does not violate the confrontation clause, regardless of whether the evidence bears adequate indicia of reliability, where “the hearsay declarants ... actually appear in court and testify in person.” United States v. Spotted War Bonnet, 933 F.2d 1471, 1473 (8th Cir.1991), cert. denied, 502 U.S. 1101, 112 S.Ct. 1187, 117 L.Ed.2d 429 (1992). We have also held that a victim’s testimony by closed-circuit television counts as actually appearing in court and testifying in person for confrontation clause purposes." }, { "docid": "7817868", "title": "", "text": "rob the place.” In his tajoed confession, Moore also admitted that he had seen a shotgun before the robbery, which he believed Treadwell had brought, but Moore thought was owned by appellant. Moore stated that appellant and Tread-well went inside while Moore waited with the car. Gilliam and Treadwell returned to the car together, with money in a bag, and told Moore that they had gotten some money. Both men got into the car; appellant got into the front seat. Moore then drove them to Tread-well’s house. Treadwell carried the shotgun insidé and appellant went home. Appellant was tried before the court, separately from Moore and Treadwell. The state called Moore to the witness stand, but he exercised his Fifth Amendment privilege and refused to testify. Consequently, the state offered Moore’s taped confession into evidence over appellant’s objection. The state also introduced appellant’s taped statement into evidence. Based on these tapes and other evidence, the trial court convicted appellant of aggravated robbery with both a firearm and a prior crime of violence specification. State v. Gilliam, 70 Ohio St.3d 17, 18-19, 635 N.E.2d 1242, 1244 (1994). Petitioner does not take issue with this factual recitation but rather focuses upon the effect of permitting Moore’s taped confession to be introduced at trial. In denying relief to petitioner, the Ohio Supreme Court dealt exclusively with the issue now before us: “whether the admission of a co-defendant’s taped statement after the co-defendant becomes unavailable violated appellant’s Sixth Amendment right to confront adverse witnesses.” Id. at 19, 635 N.E.2d at 1245. The Court concluded that it did not: The Confrontation Clause is a constitutional safeguard that ensures a defendant will not be convicted based on the charges of unseen, unknown, and unchallengeable witnesses. Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). Thus, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under a hearsay exception. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause" }, { "docid": "7411784", "title": "", "text": "some evidence that would otherwise be admissible under an exception to the hearsay rule. White v. Illinois, 502 U.S. 346, 353, 112 S.Ct. 736, 741, 116 L.Ed.2d 848 (1992), citing California v. Green, 399 U.S. 149, 155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970) and Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970); Idaho v. Wright, 497 U.S. at 814, 110 S.Ct. at 3146. See Also: Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987). In Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980), the Supreme Court set forth a general approach for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. The Court noted that the Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, the clause establishes a rule of necessity such that in the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness has been shown to be unavailable, his statement is admissible only if it bears adequate indicia of reliability. Idaho v. Wright, 497 U.S. at 814-815, 110 S.Ct. at 3146. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. Id. In other cases, the evidence must be excluded, at least in the absence of a showing of particularized guarantees of trustworthiness. Id. See Also: Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). Here, the trial court allowed three witnesses to testify to certain statements which victim Ronald Presbery had purportedly made in the late morning and early afternoon hours on the day he was murdered. Maurice Rogers, an off-duty employee of the Sunoco Station, testified that Mr. Presbery called him at about 11 a.m. on Sunday, November 29, 1981 as he was preparing to leave for church, apparently at the request of Manager" }, { "docid": "10823766", "title": "", "text": "and was admissible under the exception to the hearsay rule. The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. Defendant contends that the admission of Officer Thompson’s testimony about his conversation with Palmer violated the defendant’s confrontation rights because he was not able to cross-examine Palmer. The Supreme Court has announced a two-prong test to determine whether hearsay is admissible under the Confrontation Clause. See Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980). First, “the prosecution must either produce, or demon strate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Id. Then, once the de-clarant is shown to be unavailable, “his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” 448 U.S. at 65, 100 S.Ct. at 2539. The Supreme Court has determined that the general requirement of unavailability does not apply when the statement being offered is an out-of-court statement of a co-conspirator, see United States v. Inadi, 475 U.S. 387, 391, 106 S.Ct. 1121, 1124, 89 L.Ed.2d 390 (1986), and that these statements carry with them sufficient “indicia of reliability” because the co-conspirator exception is firmly rooted, see Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987). The holding in Bourjaily, however, is limited to those statements that fall within the traditional common law formulation of the hearsay exception. See id. at 183, 107 S.Ct. at 2782. The Court also has held that those statements introduced under the residual hearsay exception “almost by definition ... do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception.” Idaho v. Wright, 497 U.S. 805, 817, 110 S.Ct. 3139, 3147-48, 111" }, { "docid": "21627000", "title": "", "text": "motive for testing on cross-examination the credibility of the testimony”). The Massachusetts rule is similar. See Commonwealth v. Meech, 380 Mass. 490, 403 N.E.2d 1174, 1177-78 (1980); Trigones, 492 N.E.2d at 1149-50; P.J. Liacos et al., Handbook of Massachusetts Evidence § 8.7.1, at 489 (7th ed.1999) (stating that “[p]rior testimony ... is admissible if it was given under oath in a proceeding where the issues were substantially the same as in the current proceeding and the party against whom it is offered had an opportunity and a similar motive to cross-examine the witness”). Even if the motives to develop the testimony are dissimilar, that does not end the Confrontation Clause inquiry. Although a showing of sufficiently dissimilar motives removes the testimony from the “firmly rooted ... exception” analysis by placing the testimony outside of Rule 804(b)(1) or any other firmly rooted hearsay exception, the testimony may still be analyzed for “particularized guarantees of trustworthiness” and, if such guarantees are found,' admitted into evidence. Roberts, 448 U.S. at 66, 100 S.Ct. 2531; see also Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (stating that hearsay evidence that does not fall within a firmly rooted exception may nonetheless be admitted without violating the Confrontation Clause upon a showing that it has particularized guarantees of trustworthiness). If the testimony is not within a firmly rooted exception, then the proponent must show particularized guarantees of trustworthiness rendering the contested hearsay statement at least as reliable as a statement admissible under a firmly rooted exception. Wright, 497 U.S. at 821, 110 S.Ct. 3139 (citing Roberts, 448 U.S. at 66, 100 S.Ct. 2531). The SJC correctly articulated the federal constitutional standards; the only issue, then, on federal habeas review is whether the SJC unreasonably applied those standards. III. Trigones, in his habeas appeal, argues that the admission of the Weed transcript violated his Sixth Amendment rights because he was unable to cross-examine Weed on two issues: (1) pro-Commonwealth bias and (2) Weed’s ability to recollect accurately the statements Weed recounted. We address bias below, and find that Trigones has failed" }, { "docid": "8068907", "title": "", "text": "is unavailable, consistent with the requirements of the Confrontation Clause. 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The Court explained that such a statement “is admissible only if it bears adequate ‘indicia of reliability.’ ” Id. at 66, 100 S.Ct. 2531. Adequate reliability, the Court continued, can be demonstrated in one of two ways. First, “[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id. Second, if the evidence does not fall within a firmly rooted exception, it may be admitted if there is a sufficient “showing of particularized guarantees of trustworthiness.” Id. In its ruling in this case, the California Court of Appeal relied on the first of these methods for demonstrating reliability. Applying People v, Wilson, 17 Cal.App.4th 271, 277, 21 Cal.Rptr.2d 420 (1993), it reasoned that “[wjhen testimony, although hearsay, has ‘sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied,’ ” and concluded that “[t]he declaration against interest exception to the hearsay rule is such a firmly rooted exception.” Because the statement fit within the exception, the court decided that its admission was proper, and upheld the admission. A Hernandez contends that the California Court of Appeal’s determination that the admission of Cota’s statement did not violate his Confrontation Clause rights was erroneous. He relies on a line of United States Supreme Court cases dealing with the question whether declarations against penal interest are within a firmly rooted hearsay exception, beginning with Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). In Lee, the Court took up Lee’s challenge to his conviction based on the Confrontation Clause. Lee was tried jointly for murder with a codefendant in a bench trial, at which neither testified. Id. at 535-36, 106 S.Ct. 2056. At trial, the judge admitted a confession by the codefendant, and used it as evidence in finding Lee guilty. Id. at 538, 106 S.Ct. 2056. Lee objected and appealed. The Illinois Court of Appeals and Illinois Supreme Court both" }, { "docid": "7817870", "title": "", "text": "requires a showing that he is unavailable and that the statement bears adequate “indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The reliability standard can be satisfied without more in a case where the evidence falls within a firmly rooted hearsay exception. Id. at 66, 100 S.Ct. 2531. Otherwise, to satisfy the Confrontation Clause the evidence must be supported by a showing of “particularized guarantees of trustworthiness.” Id. Id. at 19-20, 635 N.E.2d at 1245 (citations reformatted). The Court went on to hold that the statement at issue fell within a firmly rooted hearsay exception as a statement against interest. Id. at 21, 635 N.E.2d at 1246 (citing Ohio R. Evid. 804(B)(3)). The Court also held that the challenged statement did not violate the Confrontation Clause because it came with particularized guarantees of trustworthiness. Id. Among other things, it looked to the fact that declarant did not attempt to shift the blame and that he had been advised of his rights before the statement was made. Id. Petitioner initiated this action on August 1, 1995, raising the same Sixth Amendment issue considered by the Ohio Supreme Court. The matter was initially referred to a magistrate judge for a report and recommendation. The magistrate judge took issue with the Ohio Supreme Court, concluding that the statement at issue did not fall within any firmly rooted hearsay exception and also did not have the particularized guarantees of trustworthiness required by the Confrontation Clause. However, the report and. recommendation went on to conclude that the admission of the statement constituted harmless error. The district court agreed that the writ should be denied but rejected the magistrate judge’s reasoning. The court indicated that it was “inclined to find that Rule 804(B)(3) is a firmly rooted hearsay exception.” However, it based its denial of the writ upon the second ground articulated by the Ohio Supreme Court: that the statement “had sufficient particularized guarantees of trustworthiness that [its] admission against Petitioner did not violate Petitioner’s rights under the Confrontation Clause.” The court also found, for purposes of" }, { "docid": "7817869", "title": "", "text": "Gilliam, 70 Ohio St.3d 17, 18-19, 635 N.E.2d 1242, 1244 (1994). Petitioner does not take issue with this factual recitation but rather focuses upon the effect of permitting Moore’s taped confession to be introduced at trial. In denying relief to petitioner, the Ohio Supreme Court dealt exclusively with the issue now before us: “whether the admission of a co-defendant’s taped statement after the co-defendant becomes unavailable violated appellant’s Sixth Amendment right to confront adverse witnesses.” Id. at 19, 635 N.E.2d at 1245. The Court concluded that it did not: The Confrontation Clause is a constitutional safeguard that ensures a defendant will not be convicted based on the charges of unseen, unknown, and unchallengeable witnesses. Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). Thus, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under a hearsay exception. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause requires a showing that he is unavailable and that the statement bears adequate “indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The reliability standard can be satisfied without more in a case where the evidence falls within a firmly rooted hearsay exception. Id. at 66, 100 S.Ct. 2531. Otherwise, to satisfy the Confrontation Clause the evidence must be supported by a showing of “particularized guarantees of trustworthiness.” Id. Id. at 19-20, 635 N.E.2d at 1245 (citations reformatted). The Court went on to hold that the statement at issue fell within a firmly rooted hearsay exception as a statement against interest. Id. at 21, 635 N.E.2d at 1246 (citing Ohio R. Evid. 804(B)(3)). The Court also held that the challenged statement did not violate the Confrontation Clause because it came with particularized guarantees of trustworthiness. Id. Among other things, it looked to the fact that declarant did not attempt to shift the blame and that he had been advised of his rights before the statement was made." }, { "docid": "17160215", "title": "", "text": "Rule 804(b)(3) and the Confrontation Clause. We agree with the district court that the detailed nature of Limoli’s statements; the fact that Limoli made the statements to close relatives in a noncustodial setting rather than to the police; and the fact that Limoli had no discernible motivation to he to either DiNunzio or Karpowicz-DiPietro in making these statements constitute “corroborating circumstances [that] clearly indicate the trustworthiness of the statement^].” Accordingly, we conclude that the district court did not abuse its discretion in finding Limoli’s statements to be sufficiently corroborated as to be rehable and admissible under Rule 804(b)(3). 2. Barone argues that the admission of Limoh’s statements violated his confrontation rights. The Supreme Court has explained that “[t]he central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990). See Zannino, 895 F.2d at 5. When a hearsay declarant is not present for cross-examination, the Confrontation Clause requires a showing that (i) the declarant is unavailable, and (ii) the statements sought to be admitted bear adequate “indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). Where the evidence is admitted under a “firmly rooted” hearsay exception, reliability may be inferred without more. See id. at 66,100 S.Ct. at 2539; Wright, 497 U.S. at 817, 110 S.Ct. at 3147 (explaining that “[a]dmission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements”); id. at 821, 110 S.Ct. at 3149-50 (“statements admitted under a ‘firmly rooted’ hearsay exception are so trustworthy that adversarial testing would add little to their reliability”). Statements that do not fall within a firmly rooted exception are “presumptively unreliable and inadmissible for Confrontation Clause purposes,” Lee v. Illinois, 476 U.S. at 543, 106 S.Ct. at 2063, and" }, { "docid": "245070", "title": "", "text": "at Sherburne County Social Services. The court admitted this videotaped statement under Minnesota Statutes § 595.02, Subd. 3, a special hearsay exception for statements made by a child describing a sexual act if the court determines it is reliable, the child either testifies or is unavailable, and there is corroborative evidence of the act. Ring argues that the admission of both of these statements violated his rights under the Confrontation Clause. We agree. II. The Confrontation Clause does not bar the use of all out-of-court statements. Additionally, we now know that whether C.R. was unavailable is irrelevant for purposes of the Clause. The Supreme Court recently held in White v. Illinois, — U.S. -, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), that unavailability of the declarant is not constitutionally required. What the Constitution does require, however, is that the hearsay statements “bear[ ] adequate ‘indicia of reliability.’ ” Idaho v. Wright, 497 U.S. 805, 815, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638 (1990). The Wright Court held, citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), that the reliability requirement can be met in either of two ways: “where the hearsay statement ‘falls within a firmly rooted hearsay exception,’ or where it is supported by ‘a showing of particularized guarantees of trustworthiness.’ ” 497 U.S. at 816, 110 S.Ct. at 3147. “ ‘[Particularized guarantees of trustworthiness’ must be shown from the totality of the circumstances.” Id., 497 U.S. at 819, 110 S.Ct. at 3148. The only circumstances which are relevant, however, are those surrounding the making of the statement, not corroborative evidence of the act. Id. The first statement being challenged by Ring is the videotaped statement made by C.R. to Dr. Carolyn Levitt. The District Court upheld the state trial court’s admission of the hearsay statement under the medical-diagnosis-or-treatment exception, Minn.R.Evid. 803(4), and therefore held its admission did not violate the Confrontation Clause, since it fell within a firmly rooted hearsay exception. Ring first argues that since C.R.’s mother did not take her to the doctor because she was experiencing medical problems" } ]

[ { "docid": "16221954", "title": "", "text": "to the court’s equitable power under 11 U.S.C. § 105(a). The district court found that it not only lacked subject matter jurisdiction, but also lacked power under section 105 to order the permanent relief sought by American. Subject matter jurisdiction and power are separate prerequisites to the court’s capacity to act. Subject matter jurisdiction is the court’s authority to entertain an action between the parties before it. Power under section 105 is the scope and forms of relief the court may order in an action in which it has jurisdiction. Compare In re Rustic Manufacturing, Inc., 55 B.R. 25, 26-27 (Bankr.W.D.Wis.1985) (analyzing court’s jurisdiction under 28 U.S.C. § 1334), with id. at 30-31 (analyzing court’s equitable power under 11 U.S.C. § 105); see In re Burstein-Applebee Co., 63 B.R. 1011, 1020 (Bankr.W.D.Mo.1986) (Burstein-Applebee). But see Mackay, 50 B.R. at 761-62 (failing to distinguish between subject matter jurisdiction and power). We must therefore decide whether section 105 invests the court with power to order the permanent relief requested by American. Section 105(a) provides that “[t]he court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.” 11 U.S.C. § 105(a). Section 105 empowers the court to enjoin preliminarily a creditor from continuing an action or enforcing a state court judgment against a nondebtor prior to confirmation of a plan. In re A.H. Robins Co., 828 F.2d 1023, 1026 (4th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1246, 99 L.Ed.2d 444 (1988); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1002-03 (4th Cir.) (Piccinin), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). Furthermore, section 105 permits the court to issue both preliminary and permanent injunctions after confirmation of a plan to protect the debtor and the administration of the bankruptcy estate. See Burstein-Applebee, 63 B.R. at 1020-21 (principals of debtor permanently enjoined from continuing state court action against creditors’ committee); In re Askew, 61 B.R. 87, 89 (Bankr.S.D.Ohio 1986) (creditor permanently enjoined from continuing state court action regarding discharged debt). American, however, points to no case, and" } ]

[ { "docid": "8212858", "title": "", "text": "jurisdiction. It is a basic principle of bankruptcy law that each separate individual or corporate entity must file a separate bankruptcy petition and that each entity is treated separately unless grounds for substantive consolidation are demonstrated. See Federal Deposit Ins. Corp. v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992). Tower Mexico has remained out of bankruptcy, allowing it to continue in business free of the burdens of the Bankruptcy Code, to pay its separate creditors and to maintain its business relationships without bankruptcy entanglement. As a necessary concomitant, under the facts of this case, the Debtors cannot bring into this Court a third-party dispute such as the controversy with Proeza under the rubric of § 1334(b) jurisdiction. The complaint must be dismissed for lack of subject matter jurisdiction. Proeza is directed to settle an order on five days’ notice. . See In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir.1991); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1002, n. 11 (4th Cir. 1986), cert denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); Wood v. Wood (In re Wood), 825 F.2d 90, 93 (5th Cir. 1987); Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 583-84 (6th Cir.1990); In re Dogpatch U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987); In re Fietz, 852 F.2d 455, 457 (9th Cir.1988); In re Gardner, 913 F.2d 1515, 1518 (10th Cir.1990); In re Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir.1990). . R.J. Tower was apparently an original party to the Joint Venture Agreement in Mexico, but it assigned its rights to Tower Mexico years ago and no longer has a direct interest therein. The Debtors do not base jurisdiction on the argument that one of the Debtors was once a party to the Joint Venture Agreement. . Just as the courts in this Circuit have continued to follow the Beck principle after adoption of the Bankruptcy Code, Judge Friendly's pre-Code formulation of jurisdiction in Turner (\"significant impact”) has continued to be good law. . The Debtors rely on three cases in this Circuit, none of which" }, { "docid": "18502902", "title": "", "text": "in its broadest sense, and would encompass what are now called contested matters, adversary proceedings, and plenary actions under the current bankruptcy law. It also includes any disputes related to administrative matters in a bankruptcy case. The use of the term \"proceeding,\" though, is not intended to confine the bankruptcy case. Very often, issues will arise after the case is closed, such as over the validity of a purported reaffirmation agreement, proposed 11 U.S.C. § 524(b), the existence of prohibited post-bankruptcy discrimination, proposed 11 U.S.C. § 525, the validity of securities issued under a reorganization plan, and so on. The bankruptcy courts will be able to hear these proceedings because they arise under title 11. H.R.Rep. No. 595, 95th Cong., 2d Sess. 445, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6401. Thus, the term “proceeding” is used to refer to the steps within the \"case” and to any subaction within the case that may raise a disputed or litigated matter. 2 Collier on Bankruptcy ¶ 301.03. Wolverine's motion to enforce the order confirming the plan cannot be properly characterized as a \"case.” See also In re Salem Mortgage Co., 783 F.2d 626, 633 n. 18 (6th Cir.1986); In re A.H. Robins Co., 788 F.2d 994, 1009 (4th Cir.), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). . The Pacor formulation has been adopted by the Fourth Circuit, see In re A.H. Robins Co., 788 F.2d 994, 1002 n. 11 (4th Cir.1985) (dicta), cert, denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); the Fifth Circuit, see In re Wood, 825 F.2d at 93; the Eighth Circuit, see In re Dogpatch, U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987); and the Ninth Circuit, see In re Fietz, 852 F.2d 455, 457 (9th Cir.1988). . Congress passed the Bankruptcy Reform Act, Pub.L. 95-598, 92 Stat. 2549, in 1978, with the goal of creating more efficient procedures for administering estates in bankruptcy. The Act vested the bankruptcy courts with broad jurisdiction; however, the reform was short-lived. In 1982, the Supreme Court decided Northern Pipeline, in which" }, { "docid": "18889868", "title": "", "text": "the proceeding need not necessarily be against the debtor or against the debt- or’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Id. at 994 (emphasis in original; citations omitted). The Pacor formulation has been adopted by the Fourth Circuit, see In re A.H. Robins Co., 788 F.2d 994, 1002 n. 11 (4th Cir.1985) (dicta), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); the Fifth Circuit, see In re Wood, 825 F.2d at 93; the Eighth Circuit, see In re Dogpatch, U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987); and the Ninth Circuit, see In re Fietz, 852 F.2d 455, 457 (9th Cir.1988). We too have accepted the Pacor articulation, albeit with the caveat that “situations may arise where an extremely tenuous connection to the estate would not satisfy the jurisdictional requirement.” In re Salem Mortgage Co., 783 F.2d 626, 634 (6th Cir.1986); accord In re Turner, 724 F.2d 338, 341 (2d Cir.1983). Because the plaintiffs appear to have sued the Trustee of the Woodward estate in his official capacity, and therefore to seek recovery from the estate itself, see Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 461 (6th Cir.1982), the outcome of the litigation could conceivably affect the size of the Woodward estate. Accordingly, we agree with the defendants that this action is “related to” a bankruptcy proceeding. Because the district court would have had original jurisdiction over this action as a related proceeding pursuant to 28 U.S.C. § 1334(b), it had removal jurisdiction under 28 U.S.C. § 1452. Our initial inquiry is not at an end, however, because section 1334(c)(2) requires a district court to abstain if “an action could not have been commenced in a court of the United States absent jurisdiction under this section.” Mandatory abstention under section 1334(c)(2) is not jurisdictional and must be raised in a timely motion. See King, Jurisdiction and Procedure Under the Bankruptcy" }, { "docid": "12392016", "title": "", "text": "the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.” Id. A proceeding “need not necessarily be against the debtor or against the debtor’s property” to satisfy the requirements for “related to” jurisdiction. Id. However, “the mere fact that there may be common issues of fact between a civil proceeding and a controversy involving the bankruptcy estate does not bring the matter within the scope of section [1334(b)].” Id. (stating also that “judicial economy itself does not justify federal jurisdiction”). Instead, “there must be some nexus between the ‘related’ civil proceeding and the title 11 case.” Id. Our Circuit adopted the Pacor test for determining whether a civil proceeding is “related to” a bankruptcy proceeding under Section 1334(b) in Robinson, 918 F.2d at 583 (noting in doing so that circuit courts have “uniformly adopted an expansive definition of a related proceeding under section 1334(b)”). The majority of our sister circuits have likewise adopted the Pacor test for “related to” jurisdiction. See In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir.1991); In re Gardner, 913 F.2d 1515, 1518 (10th Cir.1990); In re Lemco Gypsum, Inc., 910 F.2d 784, 788 and n. 19 (11th Cir.1990); In re Fietz, 852 F.2d 455, 457 (9th Cir.1988); In re Wood, 825 F.2d 90, 93 (5th Cir.1987); In re Dogpatch, U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987); A.H. Robins Co. I, 788 F.2d at 1002 n. 11. According to the Supreme Court, the Second and Seventh Circuits have adopted slightly different tests for determining whether Section 1334(b) jurisdiction exists. Celotex, — U.S. at - n. 6, 115 S.Ct. at 1499 n. 6 (citing UNR Indus., Inc. v. Continental Casualty Co., 942 F.2d 1101, 1103 (7th Cir.1991), cert. denied 503 U.S. 971, 112 S.Ct. 1586, 118 L.Ed.2d 305 (1992) and In re Turner, 724 F.2d 338, 341 (2d Cir.1983)). In addition, the Supreme Court recently cited Pacor with approval in addressing the broad scppe of the jurisdictional grant in Section 1334(b). The Court stated: Congress did not" }, { "docid": "18603016", "title": "", "text": "Gordon v. Shirley Duke Associates, A.P.I. (In re Shirley Duke Associates), 611 F.2d 15, 18, 21 CBC.2d 857 (2d Cir.1979) (under Bankruptcy Act of 1898, as amended, Bankruptcy Court has no jurisdiction to decide controversies between third parties that do not involve the debtor or his property, unless the court cannot complete its administrative duties without resolving the controversy). The Third Circuit provides us with th.e popular definition of a “related to” jurisdiction that appears to be broader in scope than Turner’s “significant connection:” The usual articulation of the test for determining whether a civil proceeding is related to a bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy ... An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate. In re Pacor, Inc. v. Higgins, 743 F.2d 984, 994, 12 BCD 285, CCH BLR Para. 70002 (3d Cir.1984) (emphasis in original). Accord, Bobroff v. Continental Bank (In re Bobroff), 766 F.2d 797, 802, 13 BCD 599, CCH BLR Para. 70637 (3d Cir.1985). See, Fietz v. Great Western Savings (In re Fietz), 852 F.2d 455, 457, CCH BLR Para. 72420 (9th Cir.1988); Wood v. Wood (In re Wood), 825 F.2d 90, 93, 17 CBC.2d 743, CCH BLR Para. 71955 (5th Cir.1987); Elscint, Inc. v. First Wisconsin Financial Corp. (Matter of Xonics, Inc.), 813 F.2d 127, 131, n. 2, 17 CBC.2d 230, CCH BLR Para. 71695 (7th Cir.1987); Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810 F.2d 782, 786, CCH BLR Para. 71616 (8th Cir.1987). See also, A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co., Inc.,), 788 F.2d 994, 1002 n. 11, 14 BCD 752, 15 CBC.2d 235, CCH BLR 71094 (4th Cir.1986) (dicta) cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). This action does not raise the Marathon issue. The State law claim in Marathon was based on" }, { "docid": "16464531", "title": "", "text": "at 93. . In relevant part this provision provides: (a) Except as provided in subsection (b) of this section, the district court shall have original and exclusive jurisdiction of all cases under Title 11. (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under Title 11, or arising in or related to cases under Title 11. 28 U.S.C. § 1334 (1988). . In Re Wood, 825 F.2d at 91. . Pacor, Inc. v. Higgins, 743 F.2d at 994. . In re Fietz, 852 F.2d 455, 457 (9th Cir.1988); see also H.Rep. No. 595, 95 Cong., 2d Sess. 43-48, reprinted in 1978 U.S.Code Cong. & Admin.News 6004-08. . Id. . In Re Wood, 825 F.2d at 93. We agree with the Fifth Circuit’s opinion in Wood that the abstention provisions of 28 U.S.C. § 1334(c)(1) (1988) at least partially address the comity issue and obviate the need for an overly restrictive interpretation of the jurisdictional grant of § 1334(b). . 743 F.2d 984, 994 (3rd Cir.1984). . 743 F.2d at 994. . As noted in In re Fietz, 852 F.2d 455, 457 (9th Cir.1988), the Fourth, Fifth, Eighth and Ninth Circuits have adopted the Pacor test without modification. See In re Fietz, 852 F.2d at 457; In Re Wood, 825 F.2d 90, 93 (5th Cir.1987); Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810 F.2d 782, 786 (8th Cir.1987); A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co., Inc.), 788 F.2d 994, 1002 n. 11 (4th Cir.) cert. denied 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). The Second, Sixth, and Seventh Circuits have adopted a more restrictive form of the Pacor test. Their formulations may deny jurisdiction in cases where the dispute’s probable effect on the debt- or's estate, while conceivable, is nonetheless remote. See Turner v. Ermiger (In re Turner), 724 F.2d 338, 341 (2d Cir.1983); Kelley v. Nodine (In re Salem Mortgage Co.), 783" }, { "docid": "12584959", "title": "", "text": "least “related to” a case under Title 11. For an action to be “related to” a case under Title 11, the test applied by the Fifth Circuit is “ ‘whether the outcome of that proceeding [the state court action] could conceivably have any effect on the estate being administered in bankruptcy.’ ” Matter of Wood, 825 F.2d 90, 93 (5th Cir.1987) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir.1984)). E.g., Matter of Majestic Energy Corp., 835 F.2d 87, 90 (5th Cir.1988); Da Silva v. American Sav., 145 B.R. 9, 11 (S.D.Tex.1992). Accord In re Marcus Hook Development Park, Inc., 943 F.2d 261, 264 (3rd Cir.1991); In re A.H. Robins Co., 788 F.2d 994,1002 n. 11 (4th Cir.), cert, denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); In re Dogpatch, U.S.A., Inc., 810 F.2d 782, 786 (8th Cir. 1987); In re Fietz, 852 F.2d 455, 457 (9th Cir.1988); In re Gardner, 913 F.2d 1515, 1518 (10th Cir.1990); Matter of Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir. 1990). The present suit, in part, attacks a settlement agreement reached in the Bankruptcy Court in Houston, Texas, between defendant Knostman and defendant Tran-sco. Any monetary judgment and/or in-junctive relief that may be obtained by the plaintiffs in the present case would clearly have an impact on the estate being administered in bankruptcy. Plaintiffs could seek enforcement of a judgment against Knost-man in the United States Bankruptcy Court for the Southern District of Texas, and such action certainly would affect the affairs in bankruptcy. Accordingly, the jurisdictional prerequisites under § 1334(b) have been satisfied. Plaintiffs, however, contend that this court is without jurisdiction to hear this case because the defendants improperly filed their removal petition with the district court instead of with the bankruptcy court clerk. Title 28 U.S.C. § 1452(a) states that a state court case may be removed “to the district court for the district where such civil action is pending.” The plain language of the statute supports removal of a case related to bankruptcy to the district court for filing with the district court" }, { "docid": "12129994", "title": "", "text": "the bankruptcy court. See 28 U.S.C. § 157 (Supp. IV 1986); N.D.Cal.General Order 24 (effective Dec. 24, 1982). Thus, we first consider whether the district court had jurisdiction over Gordon’s cross-claim under Congress’s grant of jurisdiction over proceedings related to a bankruptcy case. Various circuits have developed slightly different definitions of what constitutes a “related” case under section 1471(b) and its identical successor, section 1334(b). The Third Circuit articulated what has become the dominant formulation: The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy, [citations omitted]. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) (emphasis in original). The Fourth, Fifth and Eighth Circuits have adopted the Pacor definition without modification. See Wood v. Wood (In re Wood), 825 F.2d 90, 93 (5th Cir.1987); Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch, U.S.A., Inc.), 810 F.2d 782, 786 (8th Cir.1987); A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co., Inc.), 788 F.2d 994, 1002 n. 11 (4th Cir.) (dicta), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). The Second, Sixth and Seventh Circuits have adopted definitions similar to the one announced in Pacor, but their formulations may deny jurisdiction in cases where the dispute is “conceivably” related to the bankruptcy estate, but that relationship is remote. See Turner v. Ermiger (In re Turner), 724 F.2d 338, 341 (2d Cir.1983); Kelley v. Nodine (In re Salem Mortgage Co.), 783 F.2d 626, 634 (6th Cir.1986); Elscint, Inc. v. First Wisconsin Fin. Corp. (In re Xonics, Inc.), 813 F.2d 127 (7th Cir.1987). We conclude that the Pacor definition best represents Congress’s intent to reduce" }, { "docid": "2203485", "title": "", "text": "whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy... .Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. 743 F.2d at 994. The Pacor test has been adopted by the fourth, fifth, eighth, ninth and eleventh circuits. See Miller v. Remira, Inc. (In re Lemco Gypsum, Inc.), 910 F.2d 784 (11th Cir.1990); American Hardwoods, Inc. v. Deutsche Credit Corp. (In re American Hardwoods, Inc.), 885 F.2d 621 (9th Cir.1989); National Union Fire Ins. Co. v. Titan Energy, Inc. (In re Titan Energy, Inc.), 837 F.2d 325 (8th Cir.1988); Wood v. Wood (In re Wood), 825 F.2d 90 (5th Cir.1987); Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810 F.2d 782 (8th Cir.1987); A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co., Inc.), 788 F.2d 994 (4th Cir.), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). The second, fifth and sixth circuits have given a similar broad interpretation of “related to” jurisdiction. See Elscint, Inc. v. First Wisconsin Fin. Corp. (In re Xonics, Inc.), 813 F.2d 127 (7th Cir.1987); Kelley v. Nodine (In re Salem Mortgage Co.), 783 F.2d 626 (6th Cir.1986); Turner v. Ermiger (In re Turner), 724 F.2d 338 (2d Cir.1983). In view of the core nature of this proceeding, it is unnecessary to deal with the question of whether this is a “related to” proceeding. I will nevertheless do so briefly because the parties have dwelled on that issue. The Defendants contend this proceeding cannot conceivably alter the Debtors’ liabilities, or in any way impact upon the handling and administration of their bankruptcy estate. They apparently rely on the foreclosure sale of 69 Greensward Road which took place after the filing of the complaint. On" }, { "docid": "16464532", "title": "", "text": "restrictive interpretation of the jurisdictional grant of § 1334(b). . 743 F.2d 984, 994 (3rd Cir.1984). . 743 F.2d at 994. . As noted in In re Fietz, 852 F.2d 455, 457 (9th Cir.1988), the Fourth, Fifth, Eighth and Ninth Circuits have adopted the Pacor test without modification. See In re Fietz, 852 F.2d at 457; In Re Wood, 825 F.2d 90, 93 (5th Cir.1987); Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810 F.2d 782, 786 (8th Cir.1987); A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co., Inc.), 788 F.2d 994, 1002 n. 11 (4th Cir.) cert. denied 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). The Second, Sixth, and Seventh Circuits have adopted a more restrictive form of the Pacor test. Their formulations may deny jurisdiction in cases where the dispute’s probable effect on the debt- or's estate, while conceivable, is nonetheless remote. See Turner v. Ermiger (In re Turner), 724 F.2d 338, 341 (2d Cir.1983); Kelley v. Nodine (In re Salem Mortgage Co.), 783 F.2d 626, 634 (6th Cir.1986); Elscint, Inc. v. First Wis. Fin. Corp. (In re Xonics, Inc.), 813 F.2d 127 (7th Cir.1987). . Subject matter jurisdiction should be determined as of the date that Kemira’s filed its motion seeking damages for the loss of use of its real property, June 28, 1988. Gresham Park Community Org. v. Howell, 652 F.2d 1227, 1236 n. 25 (5th Cir. Unit B 1981). . In Re Chicago, Rock Island & Pac. Ry., 794 F.2d 1182, 1187 (7th Cir.1986). . Id. Kemira does not contend that Lawrence Miller or Miller Resources acted fraudulently in the course of the sale proceedings. Kemira failed to object to the conditions contained in the final order of sale. In order to protect the interests of good faith purchasers and the integrity of the bankruptcy system, the sale must be considered final. See In re Suchy, 786 F.2d 900, 902 (9th Cir.1985). . In Re Chicago, Rock Island & Pac. Ry., 794 F.2d at 1186. . Kemira asserts that a land owner where the debtor’s property" }, { "docid": "18603017", "title": "", "text": "Para. 70002 (3d Cir.1984) (emphasis in original). Accord, Bobroff v. Continental Bank (In re Bobroff), 766 F.2d 797, 802, 13 BCD 599, CCH BLR Para. 70637 (3d Cir.1985). See, Fietz v. Great Western Savings (In re Fietz), 852 F.2d 455, 457, CCH BLR Para. 72420 (9th Cir.1988); Wood v. Wood (In re Wood), 825 F.2d 90, 93, 17 CBC.2d 743, CCH BLR Para. 71955 (5th Cir.1987); Elscint, Inc. v. First Wisconsin Financial Corp. (Matter of Xonics, Inc.), 813 F.2d 127, 131, n. 2, 17 CBC.2d 230, CCH BLR Para. 71695 (7th Cir.1987); Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810 F.2d 782, 786, CCH BLR Para. 71616 (8th Cir.1987). See also, A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co., Inc.,), 788 F.2d 994, 1002 n. 11, 14 BCD 752, 15 CBC.2d 235, CCH BLR 71094 (4th Cir.1986) (dicta) cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). This action does not raise the Marathon issue. The State law claim in Marathon was based on “a right independent of and antecedent to the reorganization petition that conferred jurisdiction upon the bankruptcy court.” Northern Pipeline Constr. Co. v. Marathon Pipeline Co., supra, 458 U.S. at 84, 102 S.Ct. at 2878 (emphasis added). Although some of the facts supporting Trustee’s Bad Faith claim arose pre-petition, Trustee’s Bad Faith action against Defendants is not independent of Kelton’s bankruptcy case. Specifically, Defendants’ alleged continuous pre-petition and post-petition misconduct Defendants leveled against Kelton and others connected with Kelton for the purpose of putting Kelton and the others out of business which cumulated in Defendants’ improper and bad faith filing of an involuntary petition against Kelton and post-petition State Court actions against Kelton, its principles and those related to Kelton. See e.g., Basin Electric Power Cooperative v. Midwest Processing Company, 61 B.R. 129 (D.N.D.1986) (denied motion to withdraw the bankruptcy court’s reference to determine debt- or’s § 303(i) action). Thus, Trustee’s Bad Faith action is core because it arises as a direct result of the involuntary bankruptcy filing against a debtor and is alleged to have" }, { "docid": "18491661", "title": "", "text": "Ohio (In re Hughes-Bechtol, Inc.), 124 B.R. 1007, 1015 (Bankr.S.D.Ohio 1991). The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debt- or’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Wolverine Radio, 930 F.2d at 1142 (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) (citations omitted)); Robinson, 918 F.2d at 584 (quoting In re Salem Mortgage Co., 783 F.2d 626, 634 (6th Cir.1986)). This doctrine also has been adopted by the Fourth Circuit, A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co., Inc.), 788 F.2d 994, 1002 n. 11 (4th Cir.1985), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); the Fifth Circuit, Wood, 825 F.2d at 93; the Eighth Circuit, Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810 F.2d 782, 786 (8th Cir.1987); and the Ninth Circuit, Fietz v. Great Western Savings (In re Fietz), 852 F.2d 455, 457 (9th Cir.1988). Employing the foregoing analysis, the Court determines that it possesses jurisdiction over this proceeding. The outcome of this proceeding clearly could have an effect on the bankruptcy estate. Recovery by the trustee of the funds the debtor has deposited in the Program will provide additional monies for the bankruptcy estate and, hence, additional monies for distribution to creditors. The defendant’s contention that the Court does not have jurisdiction over these proceedings is not well-taken. B. Determination of Core/Non-Core The trustee contends that, as this action seeks turnover, it is a core proceeding under 28 U.S.C. § 157(b)(2)(E) and (O). The defendant disagrees. It argues that the proceeding is non-core because the action requires construction of the contract between the debtor and the Program and," }, { "docid": "18729388", "title": "", "text": "at *7 (S.D.N.Y. June 1, 1992) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984): [A] civil proceeding is related to bankruptcy [if] ... the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to the bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. See also In re Cuyahoga Equipment Corp., 980 F.2d 110, 114 (2d Cir.1992); In re Holland Industries, Inc., 103 B.R. 461, 468 (Bankr.S.D.N.Y.1989); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1002 n. 11 (4th Cir.), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). In In re Turner, 724 F.2d 338 (2d Cir.1983), the Second Circuit dismissed a debtor’s cause of action against her landlord because there was no showing that the debtor’s action had any “significant connection” to the bankruptcy. Id. at 341. Although “nowhere in Turner did the Second Circuit hold that ‘related to’ meant ‘significant connection with,’ ” some courts have interpreted the “significant connection” language as establishing a narrower standard than the one originally set forth in Pacor. However, because the state action in Turner had no possible relation to the bankruptcy proceeding, “the outcome in Turner would remain unchanged whether the court intended the ‘significant connection’ language to be interpreted as expansively as the Pacor standard, or more narrowly.” Weisman at *9. Thus, the Turner court did not create a new standard of relatedness, but merely held that under the facts of that case, there was no connection between the state action and the bankruptcy action. In Cuyahoga, the Second Circuit clarified the test of relatedness in light of the holding in Turner: the test for determining whether litigation has a significant connection with a pending bankruptcy proceeding is whether its outcome would have any “conceivable effect” on the bankrupt estate. If that" }, { "docid": "22216983", "title": "", "text": "courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to eases under title 11. 28 U.S.C. § 1334(b). Thus, the events comprising the fee disallowance, including the March 1, 1995 Order, the seventy-five Motions for Reinstatement and the April 27, 1995 hearing, must either “arise in” or be “related to” the A.H. Robins Chapter 11 bankruptcy in order to fall within this Court’s statutory jurisdiction. A proceeding “arises in” a Chapter 11 case when it is “not based on any right expressly created by Title 11 but would have no practical existence but for the bankruptcy.” Lux v. Spotswood Constr. Loans, 176 B.R. 416, 418 (E.D.Va.) (Merhige, J.) (citing In Matter of Wood, 825 F.2d 90, 97 (5th Cir.1987)), aff'd, 43 F.3d 1467 (4th Cir.1994). The United States Court of Appeals for the Fourth Circuit has broadly interpreted the “related to” language of § 1334(b): An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 1002 n. 11 (4th Cir.) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986)); see In re Johnson, 960 F.2d 396, 403 (4th Cir.1992) (“Courts have adopted an expansive definition of what is a related proceeding.”). In further recognition of § 1334(b)’s breadth, the Fourth Circuit agreed that there may be “controversies over which the new bankruptcy courts ... would have jurisdiction even if neither the debtor nor a representative of the estate were a party.” Id. (citation omitted). On this authority, it is clear that this Court may interpret § 1334(b) liberally, especially where the question at hand involves interpretation or implementation of the Sixth Amended and Restated Plan of Reorganization of the A.H. Robins Company (“Plan”). Upon confirmation of the Plan," }, { "docid": "12129995", "title": "", "text": "Cir.1984) (emphasis in original). The Fourth, Fifth and Eighth Circuits have adopted the Pacor definition without modification. See Wood v. Wood (In re Wood), 825 F.2d 90, 93 (5th Cir.1987); Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch, U.S.A., Inc.), 810 F.2d 782, 786 (8th Cir.1987); A.H. Robins Co., Inc. v. Piccinin (In re A.H. Robins Co., Inc.), 788 F.2d 994, 1002 n. 11 (4th Cir.) (dicta), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). The Second, Sixth and Seventh Circuits have adopted definitions similar to the one announced in Pacor, but their formulations may deny jurisdiction in cases where the dispute is “conceivably” related to the bankruptcy estate, but that relationship is remote. See Turner v. Ermiger (In re Turner), 724 F.2d 338, 341 (2d Cir.1983); Kelley v. Nodine (In re Salem Mortgage Co.), 783 F.2d 626, 634 (6th Cir.1986); Elscint, Inc. v. First Wisconsin Fin. Corp. (In re Xonics, Inc.), 813 F.2d 127 (7th Cir.1987). We conclude that the Pacor definition best represents Congress’s intent to reduce substantially the time-consuming and expensive litigation regarding a bankruptcy court’s jurisdiction over a particular proceeding. See H.Rep. No. 595, 95th Cong., 2d Sess., 43-48, reprinted in 1978 U.S. Code Cong. & Admin. News, 5787, 5963, 6004-08. The Pacor definition promotes another congressionally-endorsed objective: the efficient and expeditious resolution of all matters connected to the bankruptcy estate. See id. We therefore adopt the Pacor definition quoted above. We reject any limitation on this definition; to the extent that other circuits may limit jurisdiction where the Pacor decision would not, we stand by Pacor. Applying the Pacor definition to the facts at hand, we consider whether the outcome of Gordon’s cross-claim conceivably could have affected the administration of Fietz’ bankruptcy estate when Gordon filed her cross-claim on July 14, 1983. Gordon contends that her cross-claim against Great Western was property of Fietz’ bankruptcy estate. She argues that California law characterizes her cause of action as community property. Community property is part of the bankruptcy estate. See 11 U.S.C. § 541(a) (1982). The alleged community property nature of" }, { "docid": "18503814", "title": "", "text": "was proper. Bankruptcy jurisdiction is grounded in 28 U.S.C. § 1334 (1991). Section 1334 provides in part: (a) Except as provided in subsection (b) ..., the district court shall have original and exclusive jurisdiction of all cases under title 11. (b) [T]he district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11. Courts have struggled to define the elusive phrases “arising under,” “arising in,” and “related to.” As a result, bankruptcy jurisdiction is complex and at best uncertain. Matter of Wood, 825 F.2d 90, 93 (5 Cir. 1987) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984) (emphasis in original)), the Fifth Circuit articulated the test for determining if a proceeding was one arising under, arising in, or related to a case under title 11: “ ‘whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.’ ” Clearly, the resolution of the malpractice claim against Dr. Cairns could affect the estate being administered in bankruptcy. Therefore, the tort claim is at least related to a case under title 11, and this Court has jurisdiction under § 1334. Once a case falls under the bankruptcy jurisdiction of the Court, it may be removed under 28 U.S.C. § 1452(a). Section 1452(a) provides: (a) A party may remove any claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim ... under section 1334 of this title. Since the Court has jurisdiction under § 1334, the claim was removable to federal court. Continental, in fact, removed the case by following the procedures specified in Bankruptcy Rule 9027. Thus, Continental’s removal of the malpractice claim, from state court to federal court, followed the instruction of the Bankruptcy Code. The issue, therefore, is whether this Court should remand the case, or in the alternative, abstain in exercising its bankruptcy jurisdiction. II. Remand A. Since the pending state" }, { "docid": "20190015", "title": "", "text": "most support ... We adopt it as our own.”); In re Dogpatch U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987) (adopting the Pacor test); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1002 n. 11 (4th Cir.) (“The accepted definition of the ‘related to’ in these statutes is that declared in Pacor....”), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). We elaborated upon Pacor in In re Marcus Hook. There, we stated that “[a] key word in [the Pacor test] is conceivable. Certainty, or even likelihood, is not a requirement. Bankruptcy jurisdiction will exist so long as it is possible that a proceeding may impact on the debtor’s rights, liabilities, options, or freedom of action or the handling and administration of the bankrupt estate.” Marcus Hook, 943 F.2d at 264 (emphasis added) (citations and internal quotation marks omitted). Torkelsen’s cause of action against the trustee does not satisfy the requirements for relatedness set forth in Pacor. As previously mentioned, the Summertime painting was not the property of the bankrupt estate. “If the action does not involve property of the estate, then not only is it a noncore proceeding, it is an unrelated matter completely beyond the bankruptcy court’s subject-matter jurisdiction.” In re Gallucci, 931 F.2d 738, 742 (11th Cir.1991). See Bobroff, 766 F.2d at 804 (debtor’s tort claims that did not accrue until after the filing of the bankruptcy petition were not “property of the estate;” therefore, “the district court did not have jurisdiction to adjudicate them as being ‘related to’ the debtor’s bankruptcy proceeding”). Neither party has satisfactorily demonstrated how the claims that Torkelsen has asserted involving the trustee’s handling of Torkelsen’s property could possibly have any bearing upon the estate being administered in bankruptcy. Nor would any judgment obtained have any “effect on the arrangement, standing, or priorities of [the estate’s] creditors.” Pacor, 743 F.2d at 995-96. All of Torkelsen’s claims are asserted only against the trustee in his “individual capacity], and there is no claim of vicarious liability on the part of the debtors or the estate.” Howell Hydrocarbons, 897 F.2d at 190." }, { "docid": "18889867", "title": "", "text": "State forum of appropriate jurisdiction.... The term “cases under title 11” as used in section 1334(a) is a term of art signifying an action commenced in a federal district court or bankruptcy court with the filing of a petition pursuant to 11 U.S.C. §§ 301, 302, or 303. See In re Wood, 825 F.2d 90, 92 (5th Cir.1987). Accordingly, the action before us was clearly not a “case under title 11” within the meaning of section 1334(a). We do find, however, that the action was “related to” a case under section 1334(b). The circuit courts have uniformly adopted an expansive definition of a related proceeding under section 1334(b) and its substantially identical predecessor under the Bankruptcy Reform Act of 1978, 28 U.S.C. § 1471(b). As the Third Circuit explained in In re Pacor, Inc., 743 F.2d 984 (3rd Cir.1984): The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debt- or’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. Id. at 994 (emphasis in original; citations omitted). The Pacor formulation has been adopted by the Fourth Circuit, see In re A.H. Robins Co., 788 F.2d 994, 1002 n. 11 (4th Cir.1985) (dicta), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); the Fifth Circuit, see In re Wood, 825 F.2d at 93; the Eighth Circuit, see In re Dogpatch, U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987); and the Ninth Circuit, see In re Fietz, 852 F.2d 455, 457 (9th Cir.1988). We too have accepted the Pacor articulation, albeit with the caveat that “situations may arise where an extremely tenuous connection to the estate would not satisfy the jurisdictional requirement.” In re Salem Mortgage Co., 783 F.2d" }, { "docid": "18502903", "title": "", "text": "plan cannot be properly characterized as a \"case.” See also In re Salem Mortgage Co., 783 F.2d 626, 633 n. 18 (6th Cir.1986); In re A.H. Robins Co., 788 F.2d 994, 1009 (4th Cir.), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986). . The Pacor formulation has been adopted by the Fourth Circuit, see In re A.H. Robins Co., 788 F.2d 994, 1002 n. 11 (4th Cir.1985) (dicta), cert, denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); the Fifth Circuit, see In re Wood, 825 F.2d at 93; the Eighth Circuit, see In re Dogpatch, U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987); and the Ninth Circuit, see In re Fietz, 852 F.2d 455, 457 (9th Cir.1988). . Congress passed the Bankruptcy Reform Act, Pub.L. 95-598, 92 Stat. 2549, in 1978, with the goal of creating more efficient procedures for administering estates in bankruptcy. The Act vested the bankruptcy courts with broad jurisdiction; however, the reform was short-lived. In 1982, the Supreme Court decided Northern Pipeline, in which it declared the jurisdictional provisions of the Act unconstitutional because, in essence, they vested article III powers in article I judges. See In re Wood, 825 F.2d 90, 91-92 (5th Cir.1987). Congress responded with passage of the Bankruptcy Amendments and Federal Judgeship Act of 1984 in which Congress \"reenacted the 1978 Act, but divided its jurisdictional grant into 'core’ proceedings, over which the bankruptcy courts exercise full judicial power — and 'otherwise related’ or ‘non-core’ proceedings — over which the bankruptcy courts exercise only limited power.” Id. at 91. Section 1471(b) read exactly as section 1334(b) does now, except that jurisdiction was granted to \"bankruptcy courts\" rather than \"district courts.” . Although the bankruptcy court did not address which category of jurisdiction it was using, the fact that it issued an order indicates that it viewed the matter as a core proceeding. Although the district court reviewed the bankruptcy court’s order de novo, as it would if the bankruptcy court had submitted proposed findings of fact and conclusions of law for a non-core proceeding, the" }, { "docid": "12584958", "title": "", "text": "and royalty owners; for breach of implied obligations; for failure to pay royalties; and for tortious breach and interference with contractual relations. The plaintiffs request that this court award them compensatory and punitive damages resulting from the alleged breach of the various contracts or, in the alternative, plaintiffs desire a payment of royalties under the terms of the 1982 Transco contract. SUBJECT MATTER JURISDICTION Title 28 U.S.C. § 1452 states that “a party may remove a claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district has jurisdiction of such claim or cause of action under section 1334 of this title.” Title 28 U.S.C. § 1334(b) provides that \"... the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” (emphasis added). Thus, this court has subject matter jurisdiction to hear this case removed from state court if the controversy is at least “related to” a case under Title 11. For an action to be “related to” a case under Title 11, the test applied by the Fifth Circuit is “ ‘whether the outcome of that proceeding [the state court action] could conceivably have any effect on the estate being administered in bankruptcy.’ ” Matter of Wood, 825 F.2d 90, 93 (5th Cir.1987) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir.1984)). E.g., Matter of Majestic Energy Corp., 835 F.2d 87, 90 (5th Cir.1988); Da Silva v. American Sav., 145 B.R. 9, 11 (S.D.Tex.1992). Accord In re Marcus Hook Development Park, Inc., 943 F.2d 261, 264 (3rd Cir.1991); In re A.H. Robins Co., 788 F.2d 994,1002 n. 11 (4th Cir.), cert, denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); In re Dogpatch, U.S.A., Inc., 810 F.2d 782, 786 (8th Cir. 1987); In re Fietz, 852 F.2d 455, 457 (9th Cir.1988); In re Gardner, 913 F.2d 1515, 1518 (10th Cir.1990); Matter of Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir. 1990). The" } ]

[ { "docid": "3955094", "title": "", "text": "and whether assertion of personal jurisdiction violates federal due process. See Genetic Implant Sys., 123 F.3d at 1458, 43 USPQ2d at 1788. With regard to the federal constitutional due process analysis of the defendant’s contacts with the forum state in patent cases, we do not defer to the interpretations of other federal and state courts. See Akro Corp. v. Luker, 45 F.3d 1541, 1543-44, 33 USPQ2d 1505, 1506-07 (Fed.Cir.1995); Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564-65, 30 USPQ2d 1001, 1006-07 (Fed.Cir.1994). However, in interpreting the meaning of state long-arm statutes, we elect to defer to the interpretations of the relevant state and federal courts, including their determinations regarding whether or not such statutes are intended to reach to the limit of federal due process. See Red Wing Shoe Co., Inc. v. Hockersoro-Halberstadt, Inc., 148 F.3d 1355 (Fed.Cir.1998) (finding that the Minnesota long-arm statute goes to the extent of due process based on decisions of Minnesota courts); Dainippon Screen Mfg. Co. v. CFMT, Inc., 142 F.3d 1266, 1270, 46 USPQ2d 1616, 1619 (Fed.Cir.1998) (explaining that the California long-arm statute extends to the limit of due process based on Ninth Circuit case); Genetic Implant Sys., 123 F.3d at 1458, 43 USPQ2d at 1788 (finding that the Washington long-arm statute provision extends to the limit of due process based on decisions of the Washington Supreme Court); Akro, 45 F.3d at 1544, 33 USPQ2d at 1507 (adopting the Sixth Circuit’s finding that the relevant portion of the Ohio long-arm statute extends to the limit of due process); Beverly Hills, 21 F.3d at 1569 n. 23, 30 USPQ2d at 1010 n. 23 (finding that the Virginia long-arm statute extends to the limit of due process as determined by regional courts). We have not in the past substituted — and decline Graphic Controls’s invitation to begin substituting— our interpretation of state long-arm statutes for that of the relevant state and federal courts. In this case, Graphic Controls asserts specific jurisdiction under section 302(a)(1), which provides that jurisdiction exists where the defendant “transacts any business within the state or contracts anywhere to" } ]

[ { "docid": "6460892", "title": "", "text": "in its absence because the gravamen of Dainip-pon’s suit was to invalidate the ’761 patent. It also stated that Dainippon would have an adequate remedy if the case were dismissed because it could sue defendants in a forum in which jurisdiction over CFMT would be proper. Accordingly, the court determined that CFMT was an indispensable party and granted defendants’ motion to dismiss. Dainippon appealed the dismissal to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994). DISCUSSION Whether a court has personal jurisdiction over a defendant is a question of law that we review de novo. See Viam Corp. v. Iowa Export-Import Trading Co., 84 F.3d 424, 427, 38 USPQ2d 1833, 1834 (Fed.Cir.1996). Disputed facts underlying this legal determination, however, are reviewed for clear error. See 2 James Wm. Moore, Moore’s Federal Practice § 12.31[6] (3d ed.1997) [hereinafter “Moore’s”]. Furthermore, we apply the law of our circuit, rather than that of the regional circuit in which the case arose, when we determine whether the district court properly declined jurisdiction over an out-of-state patentee. See Akro Corp. v. Luker, 45 F.3d 1541, 1543, 33 USPQ2d 1505, 1506-07 (Fed.Cir.1995); see also Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564, 30 USPQ2d 1001, 1006 (Fed.Cir.1994). Whether a party is indispensable under Rule 19(b) is a matter of regional circuit law, see Katz v. Lear Siegler, Inc., 909 F.2d 1459, 1461, 15 USPQ2d 1554, 1556 (Fed.Cir.1990), a determination which is reviewed for abuse of discretion in the Ninth Circuit, see Bakia v. County of Los Angeles, 687 F.2d 299, 301 (9th Cir.1982). Dainippon argues that our ease law, in particular, Akro Corp. v. Luker, 45 F.3d 1541, 33 USPQ2d 1505 (Fed.Cir.1995), and Genetic Implant Systems, Inc. v. Core-Vent Corp., 123 F.3d 1455, 43 USPQ2d 1786 (Fed. Cir.1997), mandates a conclusion that personal jurisdiction exists over CFMT in California. Dainippon opines that this conclusion is even more compelling than in the cited eases because CFMT is CFM’s wholly-owned subsidiary. Dainippon also contends that the district court’s finding that the litigation threats and licensing negotiations exclusively involved CFM is" }, { "docid": "13498965", "title": "", "text": "International Shoe.\" Red Wing Shoe Co., Inc. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358 (Fed.Cir.1998). . In the past, the Federal Circuit has merged its analysis of the Ohio long-arm statute with its due process analysis. See, e.g., Akro Corp. v. Luker, 45 F.3d 1541, 1544 (Fed.Cir.1995). In Akro Corp., the court stated that Ohio's long-arm statute extends to the outer limits of due process. The Akro court failed to recognize, however, that the Ohio Supreme Court had expressly rejected such a notion the previous year in Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541, 545 (Ohio 1994). More recently, the Federal Circuit acknowledged Goldstein in an unreported decision and determined that Ohio’s long-arm statute does not extend to the limits of due process. Schwanger v. Munchkin, Inc., 217 F.3d 854, 1999 WL 820449 (Fed.Cir. Oct.7, 1999). In Schwanger, the panel noted that Akro Corp. had involved only the exercise of long-arm jurisdiction under subsection (1) of Ohio's statute. With respect to the other subsections of the long-arm statute, the Schwanger court reasoned that the statute is not coterminous with the limits of due process. Consequently, when analyzing subsections other than subsection (1), \"Ohio courts must not only ask whether due process is satisfied, but whether the court has jurisdiction over a defendant under the more stringent requirements of the state statute.” Schwanger, 217 F.3d 854, 1999 WL at *2 n. 2. .When analyzing personal jurisdiction for purposes of federal due process, the Federal Circuit does not defer to the decisions of Ohio’s state and federal courts. Federal Circuit precedent applies to the due process analysis when a plaintiff brings an action for patent infringement. 3D Systems, Inc. v. Aarotech Laboratories, Inc., 160 F.3d 1373, 1377 (Fed.Cir.1998). . In reaching this conclusion, the Federal Circuit rejected the proposition that the tortious injury in a patent infringement case occurs where the patent owner resides. Id. at 1570. The Beverly Hills court's rejection of such a proposition is significant in the present case, because Imperial resides in Indiana, not Ohio. . According to Endura, it made six allegedly infringing sales" }, { "docid": "7123093", "title": "", "text": "jurisdiction in a patent case will be dispositive of the issue of the court’s personal jurisdiction over individual defendant Meril Rivard as to all claims against him, including non-patent claims. As the Federal Circuit Court of Appeals has explained, Trintec Indus., Inc., 395 F.3d at 1279. As this court has noted on a number of occasions, Iowa is such a state in which the reach of the state’s long-arm statute “collapses into” the due process inquiry. See, e.g., Remmes v. International Flavors & Fragrances, Inc., 389 F.Supp.2d 1080, 1091 (N.D.Iowa 2005) (citing Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir.1994)); Med-Tec Iowa, Inc. v. Computerized Imaging Reference Sys., Inc., 223 F.Supp.2d 1034, 1036 (N.D.Iowa 2002); Waitt v. Speed Control, Inc., 212 F.Supp.2d 950, 955 (ND.Iowa 2002); Pure Fishing, Inc. v. Silver Star Co., Ltd., 202 F.Supp.2d 905, 915 (N.D.Iowa 2002). Thus, the question here is whether personal jurisdiction over Meril Rivard comports with due process. Trintec Indus., Inc., 395 F.3d at 1279. The determination whether a district court has personal jurisdiction over the defendants in a patent infringement case generally involves two inquiries. First, does jurisdiction exist under the state long-arm statute? See, e.g., Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1200 (Fed.Cir.2003); Depre-nyl Animal Health, Inc. v. U. of Toronto Innovations, 297 F.3d 1343, 1349-50 (Fed.Cir.2002); Hildebrand v. Steck Mfg. Co., 279 F.3d 1351, 1354 (Fed.Cir. 2002); Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed.Cir.2001). Second, if such jurisdiction exists, would its exercise be consistent with the limitations of the due process clause? See, e.g., Silent Drive, 326 F.3d at 1201; Inamed, 249 F.3d at 1359-60. Sometimes these two inquiries coalesce into one because the reach of the state long-arm statute is the same as the limits of the due process clause, so that the state limitation ‘collapses into’ the due process requirement. Inamed, 249 F.3d at 1360 (noting that California long-arm statute is coextensive with limits of due process); see also Deprenyl, 297 F.3d at 1350 (same, discussing Kansas long-arm statute); HollyAnne Corp. v. TFT, Inc., 199 F.3d" }, { "docid": "23667858", "title": "", "text": "obtained from the Internet. Appellant’s Br.App. at A37-43. The district court granted Pedre’s motion and dismissed the complaint. The sole explanation it gave for that action was the following order: Defendant having moved pursuant to Fed.R.Civ.P. 12(b)(2) and (3) to dismiss the complaint for lack of personal jurisdiction and improper venue or, in the alternative, to transfer this action to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1404; and the Court having considered the submissions of the parties, it is hereby: ORDERED, that Defendant’s Motion to Dismiss the Complaint be, and it hereby is GRANTED, and the Clerk is hereby directed to dismiss the complaint. SO ORDERED. Dismissal Order at 1. II A. The determination whether a district court has personal jurisdiction over the defendants in a patent infringement case generally involves two inquiries. First, does jurisdiction exist under the state long-arm statute? See, e.g., Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1200 (Fed.Cir.2003); Deprenyl Animal Health, Inc. v. U. of Toronto Innovations, 297 F.3d 1343, 1349-50 (Fed.Cir.2002); Hildebrand v. Steck Mfg. Co., 279 F.3d 1351, 1354 (Fed.Cir.2002); Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed.Cir.2001). Second, if such jurisdiction exists, would its exercise be consistent with the limitations of the due process clause? See, e.g., Silent Drive, 326 F.3d at 1201; Inamed, 249 F.3d at 1359-60. Sometimes these two inquiries coalesce into one because the reach of the state long-arm statute is the same as the limits of the due process clause, so that the state limitation “collapses into” the due process requirement. Inamed, 249 F.3d at 1360 (noting that California long-arm statute is coextensive with limits of due process); see also Deprenyl, 297 F.3d at 1350 (same, discussing Kansas long-arm statute); HollyAnne Corp. v. TFT, Inc., 199 F.3d 1304, 1307 (Fed.Cir.1999) (same, discussing Nebraska long-arm statute). Here, Trintec and Pedre appear to disagree upon whether the limitations of the District of Columbia’s long-arm statute are the same as those of the due process clause. There are two kinds of personal jurisdiction — specific and" }, { "docid": "16813563", "title": "", "text": "covered by the agreement, and that plaintiffs product is not covered by the licensed patent. DAHI at 1278. On March 4, 2002, the Ontario Superior Court of Justice ordered the Canadian court and arbitration proceedings stayed pending the determination of the present appeal before this court. UTIF filed a motion to dismiss the district court case for lack of personal jurisdiction or, in the alternative, to dismiss pending binding arbitration. The district court granted UTIF’s motion in its entirety without reaching the arbitration issue. See generally DAHI; see also Deprenyl Animal Health, Inc. v. Univ. of Toronto Inoovations [sic.] Found., No. 00-2234 CM, (D.Kan. Aug.20, 2001) (entry of judgment dismissing case in its entirety). The court held that it lacked personal jurisdiction over UTIF. DAHI at 1278-79. After noting that the Kansas long arm statute authorizes the exercise of jurisdiction to the full extent permitted by the constitution, the district court analyzed whether the exercise of jurisdiction over UTIF would comport with due process. Id. at 1275. According to the district court, it would not. Although UTIF had sufficient minimum contacts with Kansas, the exercise of jurisdiction would nevertheless violate due process; it would be so unreasonable as to violate fair play and substantial justice. Id. at 1278. DAHI appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) because the district court’s jurisdiction was based, in part, on 28 U.S.C. § 1338. II. STANDARD OF REVIEW Federal Circuit law governs the issue of personal jurisdiction in this patent-related case. See Hildebrand v. Steck Mfg. Co., Inc., 279 F.3d 1351, 1354, 61 USPQ2d 1696, 1698-99 (Fed.Cir.2002) (stating that Federal Circuit law applies to determinations of personal jurisdiction over out-of-state defendants in patent infringement cases and declaratory judgment cases in which the defendant is a patentee); 3D Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373, 1377-78, 48 USPQ2d 1773, 1776 (Fed.Cir.1998) (applying Federal Circuit law to determine that district court had personal jurisdiction over out-of-state corporation where plaintiff asserted patent and related state law claims); Akro Corp. v. Luker, 45 F.3d 1541, 1543, 33 USPQ2d 1505, 1506-07 (Fed.Cir.1995); but" }, { "docid": "20042178", "title": "", "text": "Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). General jurisdiction is not at issue in this case. The Federal Circuit applies a three prong test to determine if specific jurisdiction exists: (1) whether the defendant purposefully directed activities at residents of the forum; (2) whether the claim arises out of or relates to those activities; and (3) whether assertion of personal jurisdiction is reasonable and fair. Akro, 45 F.3d at 1545^46; see also Schwarzenegger, 374 F.3d at 802. The Supreme Court advises that the third factor applies only sparingly. When a defendant seeks to rely on the “fair play and substantial justice” factor to avoid the exercise of jurisdiction by a court that otherwise would have personal jurisdiction over the defendant, “he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Burger King, 471 U.S. at 477, 105 S.Ct. 2174. This court has echoed that restrictive characterization of the third factor, stating that “defeats of otherwise constitutional personal jurisdiction ‘are limited to the rare situation in which the plaintiffs interest and the state’s interest in adjudicating the dispute in the forum are so attenuated that they are clearly outweighed by the burden of subjecting the defendant to litigation within the forum.’ ” Akro, 45 F.3d at 1549 (quoting Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1568 (Fed.Cir.1994)). Without discovery and a record on jurisdiction, this court must resolve all factual disputes in the plaintiffs favor. Deprenyl Animal Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1347 (Fed.Cir.2002). “[Wjhere the plaintiffs factual allegations ‘are not directly controverted, [they] are taken as true for purposes of determining jurisdiction ....’” Akro, 45 F.3d at 1543 (quoting Beverly Hills Fan, 21 F.3d at 1563). To survive a motion to dismiss in the absence of jurisdictional discovery, plaintiffs need only make a prima facie showing of jurisdiction. Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1282 (Fed.Cir.2005). On appeal, Nuance seeks a reversal of the dismissal of the Abbyy defendants, arguing that the evidence" }, { "docid": "23642501", "title": "", "text": "for whether specific personal jurisdiction exists has two steps. First, we look to the state long-arm statute and see whether it is satisfied. Deprenyl, 297 F.3d at 1349-50, 63 USPQ2d at 1709; Hildebrand v. Steck Mfg. Co., 279 F.3d 1351, 1354, 61 USPQ2d 1696, 1698 (Fed.Cir.2002); Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359, 58 USPQ2d 1774, 1776 (Fed.Cir.2001); Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358, 47 USPQ2d 1192, 1194 (Fed.Cir.1998). There is no contention that state long-arm jurisdiction is lacking here if due process requirements are satisfied. See Hodges v. Hodges, 572 N.W.2d 549, 552 (Iowa 1997). If state law confers jurisdiction, we decide whether the court’s exercise of jurisdiction satisfies the requirements of due process. Deprenyl, 297 F.3d at 1350, 63 USPQ2d at 1709; Hildebrand, 279 F.3d at 1354, 61 USPQ2d at 1698; Inamed, 249 F.3d at 1359, 58 USPQ2d at 1776; Red Wing, 148 F.3d at 1358, 47 USPQ2d at 1194. Because the issue of personal jurisdiction in a declaratory action for patent invalidity and non-infringement is intimately related to patent law, personal jurisdiction over Count III is governed by the law of this circuit. Deprenyl, 297 F.3d at 1348, 63 USPQ2d at 1708; Hildebrand, 279 F.3d at 1354, 61 USPQ2d at 1698 Graphic Controls Corp. v. Utah Med. Prods., 149 F.3d 1382, 1385, 47 USPQ2d 1622, 1625 (Fed.Cir.1998). But personal jurisdiction over Counts I and II is not governed by our law. Because the issue of personal jurisdiction with respect to non-patent counts is not intimately linked to patent law, we apply the law of the regional circuit, here the Eighth Circuit. Amana Refrigeration, Inc. v. Quadlux, Inc., 172 F.3d 852, 857, 50 USPQ2d 1304, 1307 (Fed.Cir.1999). Because the parties have not conducted discovery, the plaintiff needed “only to make a prima facie showing” that the defendants were subject to personal jurisdiction. Deprenyl, 297 F.3d at 1347, 63 USPQ2d at 1706 Graphic Controls, 149 F.3d at 1383 n. 1, 47 USPQ2d at 1623 n. 1. As such, the pleadings and affidavits are to be “construe[d] ... in the light most favorable to”" }, { "docid": "1468902", "title": "", "text": "not object. See Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d 4, 6 (D.P.R.2005) (citing Lacedra v. Donald W. Wyatt Detention Facility, 334 F.Supp.2d 114, 125-126 (D.R.I. 2004)). B. Standard under Rule 12(b)(2) Pursuant to Rule 12(b)(2), a defendant may move for the dismissal of a claim based on lack of personal jurisdiction. F.R.C.P. 12(b)(2). Once personal jurisdiction is challenged, it is the plaintiff who bears the burden of “establishing that jurisdiction exists over the nonresident defendant.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002). In a patent case, the jurisdictional inquiry is “intimately involved with the substance of the patent laws” and thus the law of the United States Court of Appeals for the Federal Circuit applies. Elec. For Imaging, Inc. v. Coyle, 340 F.3d 1344, 1348 (Fed.Cir.2003) (quoting Akro Corp. v. Luker, 45 F.3d 1541, 1543 (Fed.Cir.1995)). Under Federal Circuit law, and in the absence of an evidentiary hearing, a plaintiff need only make a prima facie showing that defendants are subject to personal jurisdiction. Id. at 1349; Deprenyl Animal Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1347 (Fed.Cir.2002). Furthermore, the Court must accept as true the uncontroverted allegations in the plaintiff’s complaint and resolve all factual conflicts in the plaintiffs favor. Id. C. Personal Jurisdiction Standard The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment limits the power of a court to render a valid personal judgment against a nonresident defendant. Goodyear Dunlop Tires Operations, S.A v. Brown, — U.S. -, 131 S.Ct. 2846, 2853, 180 L.Ed.2d 796 (2011); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Pursuant to Federal Circuit law, the Court’s jurisdictional reach is further limited by the forum’s long-arm statute. LSI Indus., Inc. v. Hubbell Lighting, Inc., 232 F.3d 1369,1371 (Fed.Cir.2000). Because the Puerto Rico long-arm statute extends personal jurisdiction to the outer bounds permitted by the Fourteenth Amendment, the exercise of jurisdiction by the Court is limited only by judicial Due Process analysis. Id.; Pritzker v. Yari, 42 F.3d 53," }, { "docid": "13794836", "title": "", "text": "Colorado court granted Steck’s motion to dismiss and transfer the case to Ohio. Hildebrand ceased participating in both actions. Determining that personal jurisdiction over Hildebrand was proper, the Ohio district court dismissed the original Colorado action for want of prosecution and granted default judgment to Steck. This appeal followed. Discussion We apply Federal Circuit law to determine whether the district court properly exercised personal jurisdiction over out-of-state defendants in patent infringement cases. Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358, 47 USPQ2d 1192, 1194 (Fed.Cir.1998) (citing Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564-65, 30 USPQ2d 1001, 1006 (Fed.Cir.1994)). Similarly, we apply Federal Circuit law to personal jurisdiction inquiries over out-of-state patentees as declaratory judgment defendants. Id. (citing Akro Corp. v. Luker, 45 F.3d 1541, 1543, 33 USPQ2d 1505, 1506-07 (Fed.Cir.1995)). When the facts upon which the district court based its finding of personal jurisdiction are undisputed, as they are here, our review is de novo. Id. A district court may properly exercise personal jurisdiction over a non-consenting party outside the forum state if a two-step inquiry is satisfied. First, the party must be amenable to service of process under the appropriate state long-arm statute. Fed. R. Civ. Pro. 4(e), 4(k)(l)(A); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Second, the culmination of the party’s activities within the forum state must satisfy the minimum contacts requirement of the due process clause. International Shoe, 326 U.S. at 316, 66 S.Ct. 154. 1. The Ohio long-arm statute does not grant Ohio courts jurisdiction to the limits of the due process clause of the fourteenth amendment. Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541, 545 n. 1 (1994). We must interpret the Ohio long-arm statute in accordance with Ohio precedent. See Graphic Controls Corp. v. Utah Med. Prods., Inc., 149 F.3d 1382, 1385, 47 USPQ2d 1622, 1624-25 (Fed.Cir.1998). The district court held that Hildebrand’s contacts with Ohio satisfied three sections of the Ohio long-arm statute. We do not agree. The statute provides, in relevant part: (A)" }, { "docid": "23642500", "title": "", "text": "that the defendants’ activities were extensive enough to confer general personal jurisdiction, which requires that the defendant have “continuous and systematic” contacts with the forum state and confers personal jurisdiction even when the cause of action has no relationship with those contacts. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Deprenyl Animal Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1350, 63 USPQ2d 1705, 1709 (Fed.Cir.2002); LSI Indus. Inc. v. Hubbell Lighting, Inc., 232 F.3d 1369, 1375, 56 USPQ2d 1965, 1970 (Fed.Cir.2000). Rather, the plaintiff asserts that specific personal jurisdiction over the defendants exists. Specific personal jurisdiction must be based on activities that “arise[] out of’ or “relate[] to” the cause of action and can exist even if the defendant’s contacts are “isolated and sporadic.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Deprenyl, 297 F.3d at 1350, 63 USPQ2d at 1709; LSI Indus., 232 F.3d at 1375, 56 USPQ2d at 1970. The test for whether specific personal jurisdiction exists has two steps. First, we look to the state long-arm statute and see whether it is satisfied. Deprenyl, 297 F.3d at 1349-50, 63 USPQ2d at 1709; Hildebrand v. Steck Mfg. Co., 279 F.3d 1351, 1354, 61 USPQ2d 1696, 1698 (Fed.Cir.2002); Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359, 58 USPQ2d 1774, 1776 (Fed.Cir.2001); Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358, 47 USPQ2d 1192, 1194 (Fed.Cir.1998). There is no contention that state long-arm jurisdiction is lacking here if due process requirements are satisfied. See Hodges v. Hodges, 572 N.W.2d 549, 552 (Iowa 1997). If state law confers jurisdiction, we decide whether the court’s exercise of jurisdiction satisfies the requirements of due process. Deprenyl, 297 F.3d at 1350, 63 USPQ2d at 1709; Hildebrand, 279 F.3d at 1354, 61 USPQ2d at 1698; Inamed, 249 F.3d at 1359, 58 USPQ2d at 1776; Red Wing, 148 F.3d at 1358, 47 USPQ2d at 1194. Because the issue of personal jurisdiction in a declaratory action for patent invalidity and non-infringement is intimately" }, { "docid": "20002059", "title": "", "text": "kinds of personal jurisdiction that can be exercised consistent with the Due Process Clause: general and specific. Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1279 (Fed.Cir.2005) (citations omitted). General personal jurisdiction requires that the defendant have “continuous and systematic” contacts with the forum state and confers personal jurisdiction even when the cause of action has no relationship with those contacts. Silent Drive, Inc. v. Strong Industries, Inc. 326 F.3d 1194, 1200 (Fed.Cir.2003) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Deprenyl Animal Health, 297 F.3d at 1350; LSI Indus. Inc. v. Hubbell Lighting, Inc., 232 F.3d 1369, 1375 (Fed.Cir.2000)). Specific personal jurisdiction must be based on activities that arise out of or relate to the cause of action and can exist even if the defendant’s contacts are “isolated and sporadic.” Id. (citing Burger King v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528, (1985); Deprenyl, 297 F.3d at 1350; LSI Indus., 232 F.3d at 1375). The two-step process that guides the Court’s specific jurisdiction analysis is (1) whether the forum state’s long-arm statute is satisfied and, if so, (2) whether maintenance of the suit comports with the Due Process Clause. Id. at 1200-01 (citations omitted). Because Ohio’s long-arm statute does not extend to the limits of the Due Process Clause (see Hildebrand v. Steck Mfg. Co., Inc., 279 F.3d 1351, 1354 (Fed.Cir.2002)), the two inquiries do not merge in this case but must be considered separately. Ohio’s long-arm statute, Ohio Rev. Code § 2307.382, provides, in pertinent part, as follows: (A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person’s: (1) Transacting any business in this state; (2) Contracting to supply services or goods in this state; (3) Causing tortious injury by an act or omission in this state; (4) Causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any" }, { "docid": "8595906", "title": "", "text": "VGT individually, we refer to them collectively, as the arguments are similar and complementary. A. Reasonableness of Exercising Personal Jurisdiction We apply Federal Circuit precedent when considering whether the district court properly declined to exercise personal jurisdiction. Akro Corp. v. Luker, 45 F.3d 1541, 1543 (Fed.Cir.1995) (citing Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564 (Fed.Cir.1994)). Because personal jurisdiction is a question of law, we review de novo whether exercising personal jurisdiction over either SPEC or VGT would be unreasonable. 3D Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373, 1376 (Fed.Cir.1998). In general, a federal district court may exercise personal jurisdiction over a non-consenting out-of-state defendant if two requirements are satisfied. First, the defendant must be amenable to service of process. See Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358 (Fed.Cir.1998) (explaining that usually the first step in a personal jurisdiction analysis is “determining] whether a provision makes the defendant amenable to process.”). Determining whether a defendant is amenable to service of process often entails considering whether the defendant “is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located,” Fed.R.Civ.P. 4(k)(1)(A). This, in turn, involves examining the state’s long-arm statute. See, e.g., Red Wing Shoe Co., 148 F.3d at 1358. Second, exercising jurisdiction over the defendant must comport with due process. See Avocent Huntsville Corp. v. Aten Int’l Co., 552 F.3d 1324, 1329 (Fed.Cir.2008) (“Determining whether personal jurisdiction exists over an out-of-state defendant involves ... [considering] whether the assertion of personal jurisdiction would violate due process.” (quoting Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed.Cir.2001))). The “constitutional touchstone” of the due process inquiry “remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528" }, { "docid": "7123091", "title": "", "text": "evidence.”) (quoting Epps v. Stewart Info. Serv. Corp., 327 F.3d 642, 647 (8th Cir.2003)); Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1282 (Fed.Cir.2005) (where “there has not been discovery on the jurisdictional issue, [the plaintiff] is required ‘only to make a prima facie showing’ of jurisdiction to defeat the motion to dismiss”) (quoting Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1201 (Fed.Cir. 2003), in turn quoting Deprenyl Animal Health, Inc. v. University of Toronto Innovations Found,., 297 F.3d 1343, 1347 (Fed.Cir.2002)). Moreover, “[i]n evaluating this showing, the district court must construe all pleadings and affidavits in the light most favorable to the plaintiff.” Trintec Indus., Inc., 395 F.3d at 1282-83; accord Romak USA, Inc., 384 F.3d at 983 (“[W]e must view the evidence in the light most favorable to [the plaintiff] and resolve factual conflicts in its favor.... ”). The Federal Circuit Court of Appeals applies its own law, not that of the regional circuit, to issues of personal jurisdiction in a patent infringement case. Rates Tech., Inc. v. Nortel Networks Corp., 399 F.3d 1302, 1307 (Fed.Cir.2005) (citing Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358 (Fed.Cir. 1998)); Electronics For Imaging, Inc. v. Coyle, 340 F.3d 1344, 1350 (Fed.Cir.2003), cert. denied, 540 U.S. 1111, 124 S.Ct. 1085, 157 L.Ed.2d 899 (2004). The principle of critical importance here, where both pat ent infringement claims and state-law claims are asserted, is that if the court has personal jurisdiction over a defendant as to a patent claim, then the court also has personal jurisdiction over that defendant as to state-law claims, provided that there is supplemental subject matter jurisdiction over those state-law claims pursuant to 28 U.S.C. § 1367. Electronics For Imaging, Inc., 340 F.3d at 1348 n. 1 (citing Silent Drive, Inc., 326 F.3d at 1206; 3D Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373, 1377-78 (Fed.Cir.1998); Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1362-63 (Fed.Cir. 2001); and 13 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3523.1 (2002)). Thus, consideration of Federal Circuit standards for personal" }, { "docid": "6460893", "title": "", "text": "patentee. See Akro Corp. v. Luker, 45 F.3d 1541, 1543, 33 USPQ2d 1505, 1506-07 (Fed.Cir.1995); see also Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564, 30 USPQ2d 1001, 1006 (Fed.Cir.1994). Whether a party is indispensable under Rule 19(b) is a matter of regional circuit law, see Katz v. Lear Siegler, Inc., 909 F.2d 1459, 1461, 15 USPQ2d 1554, 1556 (Fed.Cir.1990), a determination which is reviewed for abuse of discretion in the Ninth Circuit, see Bakia v. County of Los Angeles, 687 F.2d 299, 301 (9th Cir.1982). Dainippon argues that our ease law, in particular, Akro Corp. v. Luker, 45 F.3d 1541, 33 USPQ2d 1505 (Fed.Cir.1995), and Genetic Implant Systems, Inc. v. Core-Vent Corp., 123 F.3d 1455, 43 USPQ2d 1786 (Fed. Cir.1997), mandates a conclusion that personal jurisdiction exists over CFMT in California. Dainippon opines that this conclusion is even more compelling than in the cited eases because CFMT is CFM’s wholly-owned subsidiary. Dainippon also contends that the district court’s finding that the litigation threats and licensing negotiations exclusively involved CFM is clearly erroneous because the individuals who were engaged in those activities were agents of both CFM and CFMT. Dainippon supports this contention by noting that only CFMT had the authority under the license agreement to take action with respect to litigation and to negotiate sublicenses, and therefore that defendants cannot now assert that CFMT was not involved in the communications. Defendants respond that CFMT had no pre-litigation contacts with California and that personal jurisdiction cannot be imputed to CFMT by the actions of CFM, its exclusive licensee. The defendants also contend that Dainippon misreads the license agreement and that nothing thereunder precludes CFM from warning competitors about possible infringement or negotiating sublicenses, subject to CFMT’s ultimate approval. Finally, defendants assert that the court erred in concluding that an actual controversy existed between the parties. A. Personal Jurisdiction Determining whether personal jurisdiction exists over an out-of-state defendant involves two inquiries: whether a forum state’s long-arm statute permits service of process and whether the assertion of personal jurisdiction would violate due process. See Genetic Implant, 123 F.3d" }, { "docid": "13498964", "title": "", "text": "justice.’ ” Mead Data Central, 679 F.Supp. at 1457, quoting Van Dusen, 376 U.S. at 616, 84 S.Ct. 805. Accordingly, Endura’s Motion to Transfer Venue (Doc. # 3-2) will be overruled. III. Conclusion Based upon the reasoning and citation of authority set forth above, the Defendant’s Motion to Dismiss (Doc. # 3-1), is overruled. The Defendant’s Motion to Transfer Venue (Doc. # 3-2) is overruled. . Sixth Circuit law is consistent with Federal Circuit law on this issue. See, e.g., Serras v. First Tennessee Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir.1989). . Unlike a number of other circuit courts, the Federal Circuit has concluded that the Due Process Clause at issue for personal jurisdiction in patent cases is that of the Fifth Amendment rather than the Fourteenth Amendment. Akro Corp. v. Luker, 45 F.3d 1541, 1544 (Fed.Cir.1995). \"In any event, the question of which Due Process Clause controls the personal jurisdiction inquiry becomes purely academic because [the Federal Circuit], though professing reliance on the Fifth Amendment, applies the Fourteenth Amendment state-contacts test of International Shoe.\" Red Wing Shoe Co., Inc. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1358 (Fed.Cir.1998). . In the past, the Federal Circuit has merged its analysis of the Ohio long-arm statute with its due process analysis. See, e.g., Akro Corp. v. Luker, 45 F.3d 1541, 1544 (Fed.Cir.1995). In Akro Corp., the court stated that Ohio's long-arm statute extends to the outer limits of due process. The Akro court failed to recognize, however, that the Ohio Supreme Court had expressly rejected such a notion the previous year in Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541, 545 (Ohio 1994). More recently, the Federal Circuit acknowledged Goldstein in an unreported decision and determined that Ohio’s long-arm statute does not extend to the limits of due process. Schwanger v. Munchkin, Inc., 217 F.3d 854, 1999 WL 820449 (Fed.Cir. Oct.7, 1999). In Schwanger, the panel noted that Akro Corp. had involved only the exercise of long-arm jurisdiction under subsection (1) of Ohio's statute. With respect to the other subsections of the long-arm statute, the Schwanger court reasoned" }, { "docid": "8195967", "title": "", "text": "ongoing activity that violates federal law. To hold otherwise would not only violate the principles of federalism and a state’s sovereign immunity, but it would also be akin to a suit against the state itself. Thus, Pennington’s claims against George, White and Sugg were properly dismissed. C. Personal Jurisdiction Additionally, the district court found that regardless of Pennington’s insufficient Ex parte Young claims, the First Amended Complaint lacked allegations that the University Officials had sufficient minimum contacts that subjected them to the reach of the Missouri long-arm statute. Pennington argues that it made sufficient allegations to support a prima facie case of personal jurisdiction that at least entitles it to a jurisdictional hearing. As in its Ex parte Young claims, Pennington relies on the exhibits and allegations made in response to the Motion to Dismiss. We review personal jurisdiction issues in a patent infringement case under Federal Circuit law. See Silent Drive, Inc. v. Strong Indus., 326 F.3d 1194, 1201 (Fed.Cir.2003). To establish specific personal jurisdiction in Missouri, Pennington must meet two requirements. First, jurisdiction over the University Officials must be allowed under the Missouri long-arm statute. See Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., 444 F.3d 1356, 1361 (Fed.Cir.2006); Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1279 (Fed.Cir.2005); Silent Drive, 326 F.3d at 1200; Hildebrand v. Steck Mfg. Co., 279 F.3d 1351, 1354 (Fed.Cir.2002); Deprenyl Animal Health, Inc. v. Univ. of Toronto Innovations, 297 F.3d 1343, 1349-50 (Fed. Cir.2002); Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed.Cir.2001); see also Fed. R. Civ. Pro. 4(k)(1)(A). Second, if such jurisdiction exists, we must determine whether its exercise comports with due process. Breckenridge Pharm., Inc., 444 F.3d at 1361. Because both parties concede that Missouri’s long-arm statute extends to the bounds of the due process clause, see State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 167-68 (Mo.1999), our inquiry reduces to a due process analysis, see Trintec Indus., Inc., 395 F.3d at 1279. The due process analysis requires the nonresident defendant to have “certain minimum contacts with the forum such that the maintenance of the" }, { "docid": "20042179", "title": "", "text": "situation in which the plaintiffs interest and the state’s interest in adjudicating the dispute in the forum are so attenuated that they are clearly outweighed by the burden of subjecting the defendant to litigation within the forum.’ ” Akro, 45 F.3d at 1549 (quoting Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1568 (Fed.Cir.1994)). Without discovery and a record on jurisdiction, this court must resolve all factual disputes in the plaintiffs favor. Deprenyl Animal Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1347 (Fed.Cir.2002). “[Wjhere the plaintiffs factual allegations ‘are not directly controverted, [they] are taken as true for purposes of determining jurisdiction ....’” Akro, 45 F.3d at 1543 (quoting Beverly Hills Fan, 21 F.3d at 1563). To survive a motion to dismiss in the absence of jurisdictional discovery, plaintiffs need only make a prima facie showing of jurisdiction. Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1282 (Fed.Cir.2005). On appeal, Nuance seeks a reversal of the dismissal of the Abbyy defendants, arguing that the evidence presented was more than sufficient to establish personal jurisdiction. As an alternative to reversal, Nuance urges this court to vacate the judgment below and remand to allow Nuance to take jurisdictional discovery. Nuance contends that Abbyy Production purposefully directed activities at residents of California, thereby satisfying the first prong of the Akro test for specific personal jurisdiction. Nuance focuses on the CEO’s stated goal of “conquering” the U.S. market; the importation of allegedly infringing products into California; the extraction of royalty payments for the sale of those products; and Abbyy Production’s agreement to provide assistance to Abbyy USA in selling, reproducing, and modifying the accused products in California. As of the February 11, 2008 date of the Trade Secret Magazine article, Abbyy’s FineReader software program allegedly controlled about thirty-percent of the U.S. market. Appellees respond that Abbyy Production did not purposefully direct activity to California, arguing that the Abbyy defendants took no action under 35 U.S.C. § 271 directed at the forum. They rely princi pally on HollyAnne Corp. v. TFT, Inc., 199 F.3d 1304," }, { "docid": "8195968", "title": "", "text": "over the University Officials must be allowed under the Missouri long-arm statute. See Breckenridge Pharm., Inc. v. Metabolite Labs., Inc., 444 F.3d 1356, 1361 (Fed.Cir.2006); Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1279 (Fed.Cir.2005); Silent Drive, 326 F.3d at 1200; Hildebrand v. Steck Mfg. Co., 279 F.3d 1351, 1354 (Fed.Cir.2002); Deprenyl Animal Health, Inc. v. Univ. of Toronto Innovations, 297 F.3d 1343, 1349-50 (Fed. Cir.2002); Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed.Cir.2001); see also Fed. R. Civ. Pro. 4(k)(1)(A). Second, if such jurisdiction exists, we must determine whether its exercise comports with due process. Breckenridge Pharm., Inc., 444 F.3d at 1361. Because both parties concede that Missouri’s long-arm statute extends to the bounds of the due process clause, see State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 167-68 (Mo.1999), our inquiry reduces to a due process analysis, see Trintec Indus., Inc., 395 F.3d at 1279. The due process analysis requires the nonresident defendant to have “certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Coyle, 340 F.3d at 1350 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)) (quotation marks omitted). A court’s consideration of minimum contacts generally involves three inquiries: “whether (1) the defendant purposefully directed its activities at residents of the forum state, (2) the claim arises out of or relates to the defendant’s activities with the forum state, and (3) assertion of personal jurisdiction is reasonable and fair.” Id. In this case, the district court did not hold an evidentiary hearing on the issue of personal jurisdiction. Therefore, Pennington need only make a prima facie case of personal jurisdiction, and we “must accept the uncontroverted allegations in [its] complaint as true.” Coyle, 340 F.3d at 1349. In Coyle, we held there was a prima facie case of personal jurisdiction against a Nevada patentee in the State of California. 340 F.3d at 1351. There, we noted that the patentee purposefully directed his activity toward California when (1)" }, { "docid": "7123094", "title": "", "text": "personal jurisdiction over the defendants in a patent infringement case generally involves two inquiries. First, does jurisdiction exist under the state long-arm statute? See, e.g., Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1200 (Fed.Cir.2003); Depre-nyl Animal Health, Inc. v. U. of Toronto Innovations, 297 F.3d 1343, 1349-50 (Fed.Cir.2002); Hildebrand v. Steck Mfg. Co., 279 F.3d 1351, 1354 (Fed.Cir. 2002); Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed.Cir.2001). Second, if such jurisdiction exists, would its exercise be consistent with the limitations of the due process clause? See, e.g., Silent Drive, 326 F.3d at 1201; Inamed, 249 F.3d at 1359-60. Sometimes these two inquiries coalesce into one because the reach of the state long-arm statute is the same as the limits of the due process clause, so that the state limitation ‘collapses into’ the due process requirement. Inamed, 249 F.3d at 1360 (noting that California long-arm statute is coextensive with limits of due process); see also Deprenyl, 297 F.3d at 1350 (same, discussing Kansas long-arm statute); HollyAnne Corp. v. TFT, Inc., 199 F.3d 1304, 1307 (Fed. Cir.1999) (same, discussing Nebraska long-arm statute). Two kinds of personal jurisdiction satisfy due process, “specific” and “general” jurisdiction. Id. “ ‘Specific jurisdiction “arises out of’ or “relates to” the cause of action even if those contacts are “isolated and sporadic.” ... General jurisdiction arises when a defendant maintains “continuous and systematic” contacts with the forum state even when the cause of action has no relation to those contacts.’ ” Id. (quoting LSI Indus. v. Hubbell Lighting, Inc., 232 F.3d 1369, 1375 (Fed.Cir.2000), in turn quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)); accord Epps, 327 F.3d at 648 (Eighth Circuit case also citing Helicopteros Nacionales de Colombia, 466 U.S. at 414, 104 S.Ct. 1868, for the distinctions between “general” and “specific” jurisdiction). The Federal Circuit Court of Appeals has adopted a three-factor test of “specific” jurisdiction for purposes of a patent case, which requires" }, { "docid": "7123090", "title": "", "text": "Iowa resident, and the “brunt of the injury,” if any, occurred in Canada or China where sales occurred and alleged statements were made. 2. Applicable standards Rule 12(b)(2) of the Federal Rules of Civil Procedure provides for a pre-answer motion to dismiss for “lack of jurisdiction over the person” of the defendant. Fed. R. Civ. P. 12(b)(2). Both the Eighth Circuit Court of Appeals and the Federal Circuit Court of Appeals, which has exclusive appellate jurisdiction in patent cases, 28 U.S.C. § 1295(a)(1), recognize that, in response to a Rule 12(b)(2) challenge, the party asserting personal jurisdiction only has the burden of establishing a prima facie case. See, e.g., Johnson v. Woodcock, 444 F.3d 953, 955 (8th Cir.2006) (“The party asserting personal jurisdiction has the burden of establishing a prima facie case.”); Romak USA, Inc. v. Rich, 384 F.3d 979, 983 (8th Cir.2004) (“‘[T]o defeat a motion to dismiss for lack of personal jurisdiction, the nonmoving party need only make a prima facie showing of jurisdiction[,]’ and may do so by affidavits, exhibits, or other evidence.”) (quoting Epps v. Stewart Info. Serv. Corp., 327 F.3d 642, 647 (8th Cir.2003)); Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1282 (Fed.Cir.2005) (where “there has not been discovery on the jurisdictional issue, [the plaintiff] is required ‘only to make a prima facie showing’ of jurisdiction to defeat the motion to dismiss”) (quoting Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1201 (Fed.Cir. 2003), in turn quoting Deprenyl Animal Health, Inc. v. University of Toronto Innovations Found,., 297 F.3d 1343, 1347 (Fed.Cir.2002)). Moreover, “[i]n evaluating this showing, the district court must construe all pleadings and affidavits in the light most favorable to the plaintiff.” Trintec Indus., Inc., 395 F.3d at 1282-83; accord Romak USA, Inc., 384 F.3d at 983 (“[W]e must view the evidence in the light most favorable to [the plaintiff] and resolve factual conflicts in its favor.... ”). The Federal Circuit Court of Appeals applies its own law, not that of the regional circuit, to issues of personal jurisdiction in a patent infringement case. Rates Tech., Inc." } ]

[ { "docid": "13129889", "title": "", "text": "(Michie 1982). Finally, Harbin argues that under normal commercial prac tice, a check is presented a second time when it does not initially clear the drawee bank. The Court is not persuaded by the arguments made by Harbin. In In re Duffy, 3 B.R. 263, 6 Bankr.Ct.Dec. 88, 1 Collier Bankr.Cas.2d 641 (Bankr.S.D.N.Y.1980), the debtor issued a check to a creditor more than ninety days prior to the filing of his bankruptcy case. The check, however, was honored within ninety days of the filing of debtor’s bankruptcy. The bankruptcy trustee sought to recover the amount of the check as a preferential transfer, arguing that the transfer of funds took place on the date the check was honored. In finding that the transfer took place on the date the check was honored, the court noted: It is clear that payment of the debt did not occur when the debtor delivered the postdated check to Avis. A check itself does not vest in the payee any title to or interest in the funds held by the drawee bank. See U.C.C. § 3-409. The check is simply an order to the drawee bank to pay the sum stated and does not constitute a transfer and delivery of the fund until it is paid. The date of payment, and not the date of delivery is crucial in determining when the preferential transfer occurred. Id. at 265, 6 Bankr.Ct.Dec. at 89, 1 Collier Bankr.Cas.2d at 643. The overwhelming majority of courts have followed Duffy in holding that, for purposes of section 547(b)(4), it is the date that the drawee bank honors a check that determines whether a transfer has been made within the preference period. See, e.g., Artesani v. Travco Plastics Co., Inc. (In re Super Market Distributors Corp.), 25 B.R. 63, 9 Bankr.Ct.Dec. 1155 (Bkrtcy.D. Mass.1982); Campbell v. Kimberly Clark Corp. (In re Skinner Lumber Co.), 27 B.R. 669 (Bkrtcy.D.S.C.1982); Carmack v. Zell (In re Mindy’s, Inc.), 17 B.R. 177, 5 Collier Bankr.Cas.2d 1451 (Bkrtcy.S.D.Ohio 1982); Grogan v. Chesebrough-Ponds, Inc. (In re Advance Glove Manufacturing Co.), 25 B.R. 521, 9 Bankr.Ct.Dec. 1395 (Bkrtcy.E.D.Mich.1982); Rovzar" } ]

[ { "docid": "23107041", "title": "", "text": "Robert K. Morrow, hie. v. Agri-Beef Co. (In re Kenitra, Inc.), 797 F.2d 790, 791 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 980 (1987); Engstrom v. Wiley, 191 F.2d 684, 687-88 (9th Cir.1951). If a check does not qualify under the rule, then the transfer is deemed to have been made when the check is honored, i.e. accepted and paid, by the drawee bank. The transfer-on-delivery rule has two key conditions: (1) the check must be honored by the drawee within a reasonable time; and (2) the drawer and payee must have intended that it be a cash transaction. Failure to satisfy either of these conditions means that the transfer will be deemed to have occurred on the day the check is honored by the drawee. E.g., In re Wolf & Vine, 825 F.2d at 201-02 (check not honored within reasonable time). The “reasonable” time in which to have a check honored varies under the transfer-on-delivery rule in the Ninth Circuit, but cannot exceed thirty days: Thirty days is the reasonable time to have a check honored for purposes of: —assessing whether a transfer was made before or during the prepetition preference period. 11 U.S.C. § 547(b). —eligibility for the exception for a contemporaneous exchange for new value. 11 U.S.C. § 547(c)(1). —eligibility for the exception for a transfer in the ordinary course of business. 11 U.S.C. § 547(c)(2). Ten days is the reasonable time for having a check honored for purposes of eligibility for the exception for giving of new value. 11 U.S.C. § 547(c)(4). In re Wolf & Vine, 825 F.2d at 197, construing In re Kenitra, 797 F.2d at 790, Shamrock Golf Co. v. Richcraft, Inc., 680 F.2d 645 (9th Cir.1982) (Bankruptcy Act), and McClendon v. Cal-Wood Door (In re Wadsworth Building Components, Inc.), 711 F.2d 122 (9th Cir.1983). As an accommodation to the concern that the transfer-on-delivery rule invites manipulation, the Ninth Circuit has also held that thirty days is the maximum reasonable time for obtaining payment. Thus, any period in excess of thirty days is per se unreasonable. In re" }, { "docid": "13794818", "title": "", "text": "come within the exception. This conclusion is dictated by the plain language of the statute, which utilizes the conjunctive “and” rather than the disjunctive “or.” Richter & Phillips Jewelers & Distributors, Inc. v. Dolly Toy Co., 31 B.R. 512, 515 (Bkrtcy.S.D.Ohio 1983); Rovzar v. Biddeford & Saco Bus Garage, Inc. (In re Saco Local Development Corp.), 25 B.R. 876, 879 (Bkrtcy.D.Me.1982); Paskin v. First National Bank (In the Matter of Donny), 11 B.R. 451, 452 (Bkrtcy.W.D.Wis.1981); Belfance v. Bancohio/National Bank (In re McCormick), 5 B.R. 726, 730 (Bkrtcy.N.D.Ohio 1980). The defendants have not met this burden. Section 547(c)(2)(B) requires that the transfer to the creditor be made no later -than 45 days after the debt was incurred. As Judge Keith M. Lundin of this court recently held, a debt is considered incurred under § 547(c)(2)(B) on the date that the goods, services or other performance is provided. McLemore v. Ash McNeil Welding Co. (In re Holder & Northern Lumber Co.), 37 B.R. 265 (Bkrtcy.M.D.Tenn.1983). See also Sandoz v. Fred Wilson Drilling Co. (In the Matter of Emerald Oil Co.), 695 F.2d 833, 835-837 (5th Cir.1983); Barash v. Public Finance Corp., 658 F.2d 504, 511 (7th Cir.1981); Richter & Phillips Jewelers & Distributors, Inc. v. Dolly Toy Co., 31 B.R. at 515; Quinn v. TTI Distribution Corp. (In re Moran Air Cargo, Inc.), 30 B.R. 406, 408 n. 3 (Bkrtcy.D.R.I.1983). None of the transfers attacked by the trustee as preferential were made within 45 days after these debts were incurred. All of these obligations were paid by check and, regardless whether the court considers the date of transfer to be when the check was delivered or when the check was honored by the bank, each transfer occurred more than 45 days after the debt was incurred. These transfers are thus not excepted from avoidance by the ordinary course of business exception under § 547(c)(2). The defendants next urge that these transfers come within § 547(c)(4), commonly referred to as the “subsequent advance rule.” As the Sixth Circuit Court of Appeals succinctly explained the operation of § 547(c)(4), “[preferential transfers as defined" }, { "docid": "18747756", "title": "", "text": "(B) made not later than 45 days after such debt was incurred; (C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (D) made according to ordinary business terms.” The pre-amendment version of that section is applicable to this adversary proceeding, inasmuch as the Chapter 11 case was filed prior to the effective date of the amendments. See, P.L. 98-353 Section 553(a). Under these provisions, a trustee or a debtor-in-possession, see, 11 U.S.C. Section 1107, may avoid the transfer of an interest of the debtor in property which was made to a creditor on account of an antecedent debt within ninety (90) days prior to the petition if the debtor was insolvent at the time of the transfer and if the transfer enables the creditor to receive more than they would have received in a Chapter 7 proceeding had the transfer not been made. Allison v. First Nat. Bank & Trust Co. (In re Damon), 34 B.R. 626 (Bkcy.D.Kan.1983). A trustee could not avoid a transfer which was intended by the debtor, and which was, in fact, a contemporaneous exchange for new value. Ray v. Security Mutual Finance Corp. (In re Arnett), 731 F.2d 358 (6th Cir.1984). The most determinative factor in assessing whether or not a transfer was a contemporaneous exchange is the intent of the parties to create such an exchange. McClendon v. Cal-Wood Door (In re Wadsworth Bldg. Components, Inc.), 711 F.2d 122 (9th Cir.1983). In that regard, it is generally held that when a transfer to a creditor is accomplished by check, the transfer does not occur until the check is honored by the. drawee bank. See, Harris v. Harbin Lumber Co. of Royston, Inc. (Matter of Ellison), 31 B.R. 545 (Bkcy.M.D.Ga.1983). A party is entitled to a summary adjudication if they can demonstrate that there are no genuine issues as to any material fact and that they are entitled to judgment as a matter of law. See, Bankruptcy Rule 7056, Federal Rules of Civil Procedure 56. However, a plaintiff must be able to demonstrate all elements of" }, { "docid": "10173119", "title": "", "text": "13,1983 and received on May 31,1983. This check was initially dishonored by the drawee bank, Coalmont Savings Bank, due to insufficient funds. The bank honored the check on July 28, 1983 when it was presented a second time. The creditor's defenses are based on two exceptions to the trustee’s right to avoid preferential transfers. The exceptions are known as the “ordinary course of business” exception and the “contemporaneous exchange” exception. They are provided by Bankruptcy Code § 547(c)(1) and (2) as follows: (c) The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor ... to be a contemporaneous exchange for new value given by the debtor; and (B) in fact a substantially contemporaneous exchange; (2) to the extent that such transfer was— (A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made not later than 45 days after such debt was incurred; (C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (D) made according to ordinary business terms; 11 U.S.C.A. § 547. The debt for the materials was incurred at the latest when they were delivered to the job site on May 31,1983. In re Blanton Smith Corp., 37 B.R. 303, 10 C.B. C.2d 299 (Bankr.M.D.Tenn.1984); In re Holder & Northern Lumber Co., Inc., 37 B.R. 265 (Bankr.M.D.Tenn.1984). The debtor issued a check in payment of the debt on July 8, 1983. The stipulated facts do not show whether the defendant received the check on the same date or later. For purposes of the ordinary course of business exception, payment by check may be considered made when the creditor receives the check. This was pointed out in the court’s decision in In re Fassnacht. In re Fassnacht, Jahn v. Reading Body Works, 45 B.R. 209 (1984), citing In re Johnson, 25 B.R. 889 (Bankr.E.D.Tenn.1982) (Judge Kelley). If the defendant received the check before July 16, 1983, which seems likely, then it" }, { "docid": "13794823", "title": "", "text": "Toy Co., 31 B.R. at 514; Quinn v. TTI Distribution Corp. (In re Moran Air Cargo, Inc.), 30 B.R. at 408; Artesani v. Travco Plastics Co. (In re Super Market Distributors Corp.), 25 B.R. 63, 64-65 (Bkrtcy.D.Mass.1982); Itule v. Luhr Jensen & Sons, Inc. (In re Sportsco, Inc.), 12 B.R. 34, 35-36 (Bkrtcy.D.Ariz.1981); In the Matter of Duffy, 3 B.R. 263, 265 (Bkrtcy.S.D.N.Y.1980). At least one court has nevertheless recognized that a transfer by check occurs for the purposes of § 547(b)(4) when the transfer takes effect between the parties if the check is honored by the bank within ten days of this date. Eisenberg v. JL International, Ltd. (In re Sider Ventures & Services Corp.), 33 B.R. 708, 710-712 (Bkrtcy.S.D.N.Y.1983). Because this holding comports with the express language of § 547(e), this court is persuaded that it represents the proper interpretation of when a transfer by check occurs under § 547(b)(4). This conclusion does not end the inquiry in this proceeding, however, since several courts have adopted a third approach in determining when a transfer by check occurs under § 547(c)(4). See Gold Coast Seed Co. v. Spokane Seed Co., 30 B.R. 551, 553 (Bkrtcy. 9th Cir.1983); In re Hoover, 32 B.R. 842 Bankr.L.Rep. (CCH) ¶ 63,354 at 83,075 (Bkrtcy.W.D.Okl.1983); Rovzar v. Prime Leather Finishes Co. (In re Saco Local Development Corp.), 30 B.R. 859, 862 n. 5 (Bkrtcy.D.Me.1983). See also Ellis, Preferential Payments by Check: At What Point Is Payment Made?, 16 U.C.C.L.J. 46 (1983). These courts conclude that the legislative history of § 547 establishes that a check is considered transferred when delivered for the purposes of the § 547(c) exception. The cited legislative history includes the following comment made by both Representative Don Edwards and Senator Dennis DeConcini in presenting the final drafts of the Bankruptcy Code to Congress: “Contrary to language contained in the House report, payment of a debt by means of a check is equivalent to a cash payment, unless the check is dishonored. Payment is considered to be made when the check is delivered for purposes of sections 547(c)(1) and (2).” 124" }, { "docid": "20222703", "title": "", "text": "whether there has been a contemporaneous exchange for new value is whether the parties intended such an exchange.” McClendon v. Cal-Wood Door (In re Wadsworth Bldg. Components, Inc.), 711 F.2d 122, 124 (9th Cir.1983). Courts determine the parties’ intent by examining evidence of the parties’ mutual understanding of the payment arrangement and evidence of how payments were reflected on the parties’ books. See Hechinger Inv. Co. of Del., Inc. v. Universal Forest Prods., Inc., 489 F.3d 568, 575 (3d Cir.2007) (holding that the existence of a credit relationship does not preclude a finding that a contemporaneous exchange was intended and noting that the parties had a general understanding that payments would be made at essentially the same time shipments were received) (citing In re Payless Cashways, Inc., 306 B.R. 243, 247-54 (8th Cir. BAP 2004)); Barnes v. Karbank Holdings, LLC (In re JS & RB, Inc.), 446 B.R. 350, 357 (Bankr. W.D.Mo.2011) (finding that a contemporaneous exchange was intended when the payment was equal to the amount owed for monthly rent); Official Committee of Unsecured Creditors of Contempri Homes, Inc. v. Seven D Wholesale (In re Contempri Homes, Inc.), 269 B.R. 124, 128-29 (Bankr.M.D.Pa.2001) (finding that a contemporaneous exchange was not intended when evidence showed that although payments roughly corresponded to the value of new goods shipped, checks were applied to old invoices). Contemporaneousness is a flexible concept that requires a case-by-case inquiry into all relevant circumstances—such as length of delay, reason for delay, nature of the transaction, intentions of the parties, and possible risk of fraud—surrounding an allegedly preferential transfer. Pine Top Ins. Co. v. Bank of Am. Nat’l Trust & Sav. Assoc., 969 F.2d 321, 328 (7th Cir.1992). Tomball Forest does not meet its burden of establishing that the transfer was intended to be a contemporaneous exchange. Tomball Forest’s only evidence of intent is the conclusory statement in Goodman’s affidavit that “Tomball and Bison intended for each delivery, invoice, and payment to be a contemporaneous exchange.” Defs Ex. A; EOF No. 22-1, at 2. The only evidence that the exchanges were substantially contemporaneous is that each invoice was" }, { "docid": "18583959", "title": "", "text": "set forth in dictum in Shamrock Golf, was affirmed in Robert K. Morrow, Inc. v. Agri-Beef Co. (In re Kenitra, Inc.), 797 F.2d 790, 791 (9th Cir.1986) (“A debtor’s payment by check on an existing debt, presented to the bank within a reasonable time and honored by the bank, is deemed made at the time the debtor gave the check to the creditor_”) cert. denied, - U.S. -, 107 S.Ct. 928, 93 L.Ed.2d 980 (1987). In re Kenitra also expanded the Shamrock Golf holding by using the transfer-on-delivery rule to determine whether a transaction fell within the ninety-day period provided by section 547(b)(4)(A). Contra Itule v. Luhr Jensen & Sons, Inc. (In re Sportsco, Inc.), 12 B.R. 34, 36 (Bankr.D.Ariz.1981) (A check transfer takes place when the check is honored.). Kenitra and Shamrock Golf, if carefully read, are not inconsistent with another Ninth Circuit case, McClendon v. Cal-Wood Door (In re Wadsworth Building Components, Inc.), 711 F.2d 122 (9th Cir.1983). Wadsworth applied the transfer timing provisions in section 547(e) to check transactions and held that check transfers only take place at the time the check is delivered if the check was honored within ten days of delivery. Section 547 provides that if a transfer is in the form of a check and if the check is not honored within ten days from execution ... then the transfer is made when the check is honored by the drawee bank. 11 U.S.C. § 547(e)(2)(A) and (B).... 711 F.2d at 123. Shamrock Golf, In re Kenitra, and Wadsworth can be reconciled because they address different subparts of section 547. The language set forth in Shamrock Golf addressed only sections 547(c)(1) and (2) and In re Kenitra involved only the ninety-day preference period provision of section 547(b)(4)(A). On the other hand, Wads-worth involved the “new value exception” to the avoidance power, authorized by section 547(c)(4). Congress did not necessarily contemplate a unitary concept of time of transfer for all parts of section 547. See Gold Coast Seed Co. v. Spokane Seed Co. (In re Gold Coast Seed Co.), 30 B.R. 551, 553 (Bankr. 9th" }, { "docid": "10182440", "title": "", "text": "replaced it with a “subsequent advance rule,” which is simply stated as “foreclos[ing] avoidance of the transfer by the trustee ... if the creditor provides additional value after the transfer from the debtor to the creditor.” In re Fulghum Construction Corp., 706 F.2d 171, 173 (6th Cir.1983). See also, e.g., In re Wadsworth Bldg. Components, Inc., 711 F.2d 122 (9th Cir.1983); Leathers v. Prime Leather Finishes Co., 40 B.R. 248 D.Me.1984); In re American International Airways, Inc., 56 B.R. 551 (Bankr.E.D.Pa. 1986) (per KING, J.); In re Telecommunication Services, Inc., 55 B.R. 83 (Bankr.E.D.Mo.1985); and In re Quality Plastics, Inc., 41 B.R. 241 (Bankr.W.D.Mich.1984). Thus, in interpreting § 547(c)(4), we must look not to the net result of the dealings between the parties over the 90-day preference period, but only to the extent of value given by the creditor after the otherwise preferential transfer was made by the debt- or. The thicket of triple negatives in § 547(c)(4)(B) is not so forbidding either, when the section is restated by cancelling two (2) of them; it merely requires that, in exchange for the new value, the debtor must have made a transfer which otherwise would have been avoidable. Thus, the creditor can set off against a claim of a preferential transfer the value of whatever he has given to the debtor after the debt- or’s transfer, where the transfer proves to be illusory because it is ultimately set aside as preferential. Thus, § 547(c)(4) is eminently fair, and protects creditors who deal with financially unstable businesses and reasonably rely on their payments as a consideration for providing these future services. We hold that § 547(c)(4) applies here to provide Krain with a partial offset against the avoidance of all of the checks given as preferential transfers. Consistent with the “subsequent advance rule,” we can only measure Krain’s new value from the date of delivery of the first of the Debtor’s checks which otherwise constituted preferential transfers forward. Thus, the starting date for measurement is June 15, 1984. Somewhat unfortunately for Krain, the burden is clearly upon it to establish the elements" }, { "docid": "6542782", "title": "", "text": "For Summary Judgment, apparently arguing that the estate of a decedent cannot be a debtor under Title 11 of the United States Code. The estate also asserts that any claims made by the Trustee in this case have been submitted subsequent to the time specified under state law for asserting claims against a decedent’s estate. As previously indicated, Bernal has not, at any time or any capacity, appeared or answered in this case. LAW Federal Rule of Civil Procedure, as made applicable by Bankruptcy Rule 7056, states in pertinent part: (a) ... A party seeking to recover upon a claim, counterclaim, or crossclaim ... may ... move ... for a summary judgment in his favor upon all or any part thereof ... (c) ... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Under this Rule, a Court may grant summary judgment if it can be demonstrated that there are, with respect to any cause of action, no questions of material fact and that the parties are entitled to judgment as a matter of law. See, Hartwig Poultry, Inc. v. C. W. Services (In re Hartwig Poultry, Inc.), 57 B.R. 549 (Bkcy.N.D.Ohio 1986). However, in order to prevail in an action a plaintiff must be able to demonstrate all elements of the action. See, Chalmers v. Benson (In re Benson), 33 B.R. 572 (Bkcy.N.D.Ohio 1983). I With regard to the causes of action set forth in Counts One and Two of the Amended Complaint, wherein the Trustee seeks to avoid 1) the payments on the Bar-entine Company Loan and the Barentine Real Estate Loan, 2) the taking of the security interest in the Toledo Trust Securities, and 3) the perfection of the mortgage on the Schafer property, the provisions of 11 U.S.C. § 547(b) state in pertinent part: (b) ... the trustee may avoid any transfer of an interest" }, { "docid": "1155699", "title": "", "text": "1981, forty-seven days after the debt was incurred, when the Debtor made funds available and the drawee bank was able to honor the check. Because the transfer did not occur until forty-seven days after the debt was incurred, the Defendant is not entitled to the exception provided in § 547(c)(2), and, accordingly, Defendant must return to the Trustee the $8,150 preferential payment that it received from QHL. 11 U.S.C. § 547(e)(1) provides that: For the purposes of this section — ... (B) a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee. Since the funds in the drawee bank could have been garnished by a creditor on a simple contract prior to the honoring of the check by the bank on March 20, 1981, the transfer was not complete for preference purposes until that date. Fitzpatrick v. Philco Finance Corp., 491 F.2d 1288, 1293 (7th Cir.1974); In re Duffy, 3 B.R. 263, 265 (Bankr.S.D.N.Y.1980); Klein v. Tabatchnick, 610 F.2d 1043, 1049 (2nd Cir.1979); In re Super Market Distributors Corp., 25 B.R. 63, 64-65 (Bankr.D.Mass.1982). Under Texas law, a check itself does not vest in the payee any title to or interest in the funds held by the drawee bank. Tex. Bus. & Comm.Code Ann. (“UCC”), Art. 3.409 (Vernon Supp.1984-85). For additional cases holding that, for purposes of § 547(c)(2), payment by check does not occur until the check is honored by the drawee bank, see In the Matter of Advanced Glove Mfg. Co., 25 B.R. 521, 524-525 (Bankr.E.D.Mich.1982); In re Naudin, Inc., 32 B.R. 875, 878 (Bankr.E.D.Penn.1983); In re Morton Shoe Companies, Inc., 36 B.R. 14 (Bankr.D.Mass.1983). It is noted that the Defendant’s position is supported by a decision of the Ninth Circuit which held that the date a check was delivered was the date on which the payment was complete. Shamrock Gulf Company v. Richcraft, Inc., 680 F.2d 645 (9th Cir.1982). See also O’Neill v. Nestle Libbys P.R., Inc., 729 F.2d 35 (1st Cir.1984); Ellis," }, { "docid": "1191133", "title": "", "text": "Upon the drawee bank’s honoring of a draft, funds are no longer in the account and attachment is not possible. A transfer of property by way of a check is made only when the debt- or’s bank ultimately honors the check. In re Skinner Lumber Co., 27 B.R. 669, 670-71 (Bkrtcy.D.S.C.1982); In re Super Market Distrib. Corp., 25 B.R. 63, 64 (Bkrtcy.D.Mass.1982); In re Sportsco, Inc., 12 B.R. 34, 36 (Bkrtcy.D.Ariz.1981). See U.C.C. § 3-409 (1980) (check in itself does not vest in payee any title to or interest in funds held by drawee bank). In re Bob Grissett Golf Shoppes, Inc., supra, 34 B.R. at 322. In Sider Ventures & Services Corp., 47 B.R. 406 (S.D.N.Y.1985), the district court affirmed the bankruptcy court’s use of § 547(e)(2)(A) to a § 547(b) situation. Section 547(e)(2)(A) provides that for purposes of that section a transfer is made when it “takes effect between the transferor and the transferee if such transfer is perfected at, or within 10 days after, such time.” 11 U.S.C. § 547(e)(2)(A). The district court held that the bankruptcy judge’s conclusion was that: although a check transfer is not perfected — that is, the transfer is not entirely complete — until payment is made by the bank, the transfer “takes effect” immediately upon delivery. While it is true that the obligation is not discharged until the check is honored, delivery of the check suspends the right to sue on the obligation and sets in motion the inevitably time-consuming process of transferring the drawer’s property, in the form of bank funds, to the payee. Delivery of the check thus sets in motion the process of debt satisfaction, and for that reason Judge [Prudence] Abram concluded that the transfer “takes effect” on the day of delivery. [In re Sider Ventures & Services Corp.,] 33 B.R. 710-711 [Bank.S.D.N.Y.1983]. Accord, In re Blanton Smith Corp., 37 B.R. 303, 308 (Bankr.M.D.Tenn.1984) (expressly); In re Wadsworth Building Components, Inc., 711 F.2d 122, 123 (9th Cir.1983) (implicitly). This holding harmonizes with daily experience in the use of checks. One considers a debt “paid,” even if it" }, { "docid": "13794819", "title": "", "text": "of Emerald Oil Co.), 695 F.2d 833, 835-837 (5th Cir.1983); Barash v. Public Finance Corp., 658 F.2d 504, 511 (7th Cir.1981); Richter & Phillips Jewelers & Distributors, Inc. v. Dolly Toy Co., 31 B.R. at 515; Quinn v. TTI Distribution Corp. (In re Moran Air Cargo, Inc.), 30 B.R. 406, 408 n. 3 (Bkrtcy.D.R.I.1983). None of the transfers attacked by the trustee as preferential were made within 45 days after these debts were incurred. All of these obligations were paid by check and, regardless whether the court considers the date of transfer to be when the check was delivered or when the check was honored by the bank, each transfer occurred more than 45 days after the debt was incurred. These transfers are thus not excepted from avoidance by the ordinary course of business exception under § 547(c)(2). The defendants next urge that these transfers come within § 547(c)(4), commonly referred to as the “subsequent advance rule.” As the Sixth Circuit Court of Appeals succinctly explained the operation of § 547(c)(4), “[preferential transfers as defined in § 547(b) may not be avoided by the trustee if ‘after such transfer, such creditor gave new value’.” (emphasis in original). Waldschmidt v. Ranier (In re Fulghum Construction Corp.), 706 F.2d 171, 172 (6th Cir.1983). See also McClendon v. Cal-Wood Door (In re Wadsworth Building Components, Inc.), 711 F.2d 122, 123 (9th Cir.1983); Flatau v. Marathon Oil Co. (In the Matter of Craig Oil Co.), 31 B.R. 402, 407 (Bkrtcy.M.D.Ga.1983). Because § 547(c)(4) focuses on new value after the preference, the actual date of the preferential transfer from the debtor to the creditor is of critical importance. In the present case, the question is whether the checks transferred by the debtor Blanton Smith to Gulf through its agent Boyd occurred when the checks were actually delivered or when the checks were honored by Blanton Smith’s bank. 11 U.S.C.A. § 547(e) (West 1979), which defines when a transfer occurs for the purposes of the preference section of the Bankruptcy Code, provides in relevant part as follows: “(e)(1) For the purposes of this section— (A) •" }, { "docid": "18747758", "title": "", "text": "a cause of action in order to prevail. See, Chalmers v. Benson (In re Benson), 33 B.R. 572 (Bkcy.N.D.Ohio 1983), Simmons v. Landon (In re Landon), 37 B.R. 568 (Bkcy.N.D.Ohio 1984). I In considering the Debtor-In-Possession’s Motion For Summary Judgment, a review of the facts finds that the Debtor-In-Possession made two payments to Kendall, and that these two payments were made within the ninety (90) day period which preceded the filing of the Petition. The facts also show that the payment which was made on August 27, 1982, was made on service which was given more than forty-five (45) days prior to the payment, and some value which was given less than forty-five (45) days from the date of payment. July 13, 1982, appears to be the cutoff date. (The Debtor-In-Possession has sued to recover only that portion of the August 27, 1982, payment which covers the July 12, 1982, service. Therefore, only that portion of the transfer will be considered.) The payment made on October 8, 1982, was made approximately one and one-half (IV2) months subsequent to the date on which Kendall actually rendered the services. Since no security interest appears to have been taken in connection with the debt, it is clear that these were payments made to an unsecured creditor on account of an antecedent debt. Furthermore, the Debtor-In-Possession is presumed to have been insolvent during the ninety day period. See, 11 U.S.C. Section 547(f). Although not presented in connection with the Motion For Summary Judgment against Kendall, the Debtor-In-Possession has presented in Motions For Summary Judgment against other defendants evidence of the fact that such defendants received more as a result of the transfer than would have been received under a liquidation. In that regard the Debtor-In-Possession has offered the affidavit of its counsel, wherein it indicated that at the time of the filing of the Petition the Debt- or-In-Possession had approximately One Million Eight Hundred Thousand and no/100 Dollars ($1,800,000.00) in liabilities and One Hundred Seventy and no/100 Dollars ($170,000.00) in assets. A review of the evidence indicates that had the Debtor-In-Possession been liquidated, Kendall," }, { "docid": "13794820", "title": "", "text": "in § 547(b) may not be avoided by the trustee if ‘after such transfer, such creditor gave new value’.” (emphasis in original). Waldschmidt v. Ranier (In re Fulghum Construction Corp.), 706 F.2d 171, 172 (6th Cir.1983). See also McClendon v. Cal-Wood Door (In re Wadsworth Building Components, Inc.), 711 F.2d 122, 123 (9th Cir.1983); Flatau v. Marathon Oil Co. (In the Matter of Craig Oil Co.), 31 B.R. 402, 407 (Bkrtcy.M.D.Ga.1983). Because § 547(c)(4) focuses on new value after the preference, the actual date of the preferential transfer from the debtor to the creditor is of critical importance. In the present case, the question is whether the checks transferred by the debtor Blanton Smith to Gulf through its agent Boyd occurred when the checks were actually delivered or when the checks were honored by Blanton Smith’s bank. 11 U.S.C.A. § 547(e) (West 1979), which defines when a transfer occurs for the purposes of the preference section of the Bankruptcy Code, provides in relevant part as follows: “(e)(1) For the purposes of this section— (A) • • • (B) a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee. (2) For the purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made— (A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within ten days after, such time; (B) at the time such transfer is perfected, if such transfer is perfected after such ten days; or (C) .... (3) For the purposes of this section, a transfer is not made until the debtor has acquired rights in the property transferred.” A literal reading of this provision mandates that a transfer by check does not occur (or is not “perfected”) until a creditor on a simple contract cannot acquire a judicial lien superior to the interest of the transferee. The only exception to this rule is if the transfer of" }, { "docid": "18489602", "title": "", "text": "... to the extent that such transfer was (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (C) made according to ordinary business terms.... 11 U.S.C. § 547(c)(2) (1988). . In support of our holding in In re White River, we relied on the legislative history of subsections 547(c)(1) and (2), in particular the statements of Senator DeConcini and Representative Edwards: Contrary to the language contained in the house report, payment of a debt by means of a check is equivalent to a cash payment, unless the check is dishonored. Payment is considered to be made when the check is delivered for purposes of section 547(c)(1) and (2). In re White River, 799 F.2d at 633 (quoting 124 Cong.Rec. HI 1097 (daily ed. Sept. 28, 1978); 125 Cong.Rec. S17414 (daily ed. Oct. 6, 1978)). . Some courts have erroneously applied section 547(e) to determine when a check is transferred. See, e.g., McClendon v. Cal-Wood Door (In re Wadsworth Bldg. Components, Inc.), 711 F.2d 122, 123 (9th Cir.1983). Section 547(e) states in pertinent part: \"For the purposes of this section ... a transfer is made ... at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time_” 11 U.S.C. § 547(e)(2)(A) (1988). The argument is that the honoring of a check by the drawee bank is analogous to perfection. Therefore, if the check is honored within 10 days of execution, the transfer is deemed made when the check is delivered. See 4 Collier on Bankruptcy ¶ 547.16 at 547-72; In re Wadsworth, 711 F.2d at 123. We reject this reasoning because section 547(e) deals with security interests, not checks. See H.Rep. No. 595, 95th Cong., 2d Sess. 374-75, reprinted in 1978 U.S.Code Cong. & Admin. News 5963, 6330-31; 4 Collier on Bankruptcy at 547-73; O’Neill v. Nestle Lihbys P.R., Inc., 729 F.2d" }, { "docid": "20222702", "title": "", "text": "contemporaneous exchange for new value: The trustee may not avoid under this section a transfer to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange!.] 11 U.S.C. § 547(c)(1). The purpose of the contemporaneous exchange exception is to protect transactions that do not result in a diminution of the bankruptcy estate. Velde v. Kirsch, 543 F.3d 469, 472 (8th Cir.2008). If new value is given, a contemporaneous exchange does not diminish the estate. Id. To defend itself under § 547(c)(1), a creditor must demonstrate “intent, con-temporaneousness and new value.” Southmark Corp. v. Schulte Roth & Zabel (In re Southmark Corp.), 2000 WL 1741550, at *3 (5th Cir.2000) (quoting Tyler v. Swiss Am. Sec. (In re Lewellyn & Co.), 929 F.2d 424, 427 (8th Cir.1991)). Whether intent, contemporaneousness, and new value exist are questions of fact. Id. “The critical inquiry in determining whether there has been a contemporaneous exchange for new value is whether the parties intended such an exchange.” McClendon v. Cal-Wood Door (In re Wadsworth Bldg. Components, Inc.), 711 F.2d 122, 124 (9th Cir.1983). Courts determine the parties’ intent by examining evidence of the parties’ mutual understanding of the payment arrangement and evidence of how payments were reflected on the parties’ books. See Hechinger Inv. Co. of Del., Inc. v. Universal Forest Prods., Inc., 489 F.3d 568, 575 (3d Cir.2007) (holding that the existence of a credit relationship does not preclude a finding that a contemporaneous exchange was intended and noting that the parties had a general understanding that payments would be made at essentially the same time shipments were received) (citing In re Payless Cashways, Inc., 306 B.R. 243, 247-54 (8th Cir. BAP 2004)); Barnes v. Karbank Holdings, LLC (In re JS & RB, Inc.), 446 B.R. 350, 357 (Bankr. W.D.Mo.2011) (finding that a contemporaneous exchange was intended when the payment was equal to the amount owed for monthly rent); Official Committee of Unsecured" }, { "docid": "18747757", "title": "", "text": "was intended by the debtor, and which was, in fact, a contemporaneous exchange for new value. Ray v. Security Mutual Finance Corp. (In re Arnett), 731 F.2d 358 (6th Cir.1984). The most determinative factor in assessing whether or not a transfer was a contemporaneous exchange is the intent of the parties to create such an exchange. McClendon v. Cal-Wood Door (In re Wadsworth Bldg. Components, Inc.), 711 F.2d 122 (9th Cir.1983). In that regard, it is generally held that when a transfer to a creditor is accomplished by check, the transfer does not occur until the check is honored by the. drawee bank. See, Harris v. Harbin Lumber Co. of Royston, Inc. (Matter of Ellison), 31 B.R. 545 (Bkcy.M.D.Ga.1983). A party is entitled to a summary adjudication if they can demonstrate that there are no genuine issues as to any material fact and that they are entitled to judgment as a matter of law. See, Bankruptcy Rule 7056, Federal Rules of Civil Procedure 56. However, a plaintiff must be able to demonstrate all elements of a cause of action in order to prevail. See, Chalmers v. Benson (In re Benson), 33 B.R. 572 (Bkcy.N.D.Ohio 1983), Simmons v. Landon (In re Landon), 37 B.R. 568 (Bkcy.N.D.Ohio 1984). I In considering the Debtor-In-Possession’s Motion For Summary Judgment, a review of the facts finds that the Debtor-In-Possession made two payments to Kendall, and that these two payments were made within the ninety (90) day period which preceded the filing of the Petition. The facts also show that the payment which was made on August 27, 1982, was made on service which was given more than forty-five (45) days prior to the payment, and some value which was given less than forty-five (45) days from the date of payment. July 13, 1982, appears to be the cutoff date. (The Debtor-In-Possession has sued to recover only that portion of the August 27, 1982, payment which covers the July 12, 1982, service. Therefore, only that portion of the transfer will be considered.) The payment made on October 8, 1982, was made approximately one and one-half (IV2)" }, { "docid": "6542783", "title": "", "text": "this Rule, a Court may grant summary judgment if it can be demonstrated that there are, with respect to any cause of action, no questions of material fact and that the parties are entitled to judgment as a matter of law. See, Hartwig Poultry, Inc. v. C. W. Services (In re Hartwig Poultry, Inc.), 57 B.R. 549 (Bkcy.N.D.Ohio 1986). However, in order to prevail in an action a plaintiff must be able to demonstrate all elements of the action. See, Chalmers v. Benson (In re Benson), 33 B.R. 572 (Bkcy.N.D.Ohio 1983). I With regard to the causes of action set forth in Counts One and Two of the Amended Complaint, wherein the Trustee seeks to avoid 1) the payments on the Bar-entine Company Loan and the Barentine Real Estate Loan, 2) the taking of the security interest in the Toledo Trust Securities, and 3) the perfection of the mortgage on the Schafer property, the provisions of 11 U.S.C. § 547(b) state in pertinent part: (b) ... the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of the 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)within 90 days before the date of the filing of the petition; (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by provisions of this title. (c) The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debt- or; and (B) in fact a substantially contemporaneous exchange; Under these provisions the Trustee may avoid the transfer of an interest of the" }, { "docid": "10176188", "title": "", "text": "The trustee claims that the payment to Texaco is a voidable preferential transfer under 11 U.S.C. § 547(b). Texaco denies the allegation and asserts the payment falls within the § 547(c)(2) exception to avoidability. A motion for summary judgment permits consideration of only whether “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c) F.R.C.P. (1984). The moving party has the burden of demonstrating the absence of any genuine issues of material fact which precludes such relief. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980); In re Euro-Swiss International Corp., 33 B.R. 872, 878 (Bankr.S.D.N.Y.1983). But where there is no genuine dispute as to a material fact, summary judgment has an appropriate and necessary role in efficient dispute resolution. The opposing party, therefore, cannot defeat such a demonstration through surmise, conjecture or allegation; it must come forward with facts asserted on the basis of knowledge rather than rest on an attorney’s affidavit. Quinn, 613 F.2d at 445; Applegate v. Top Associates, 425 F.2d 92, 96 (2d Cir.1979); Dressler v. MV Sandpiper, 331 F.2d 130, 133-33 (2d Cir.1964). A trustee may only avoid a transfer if it both meets the requirements of § 547(b) of the Code and does not fall within one of the exceptions provided by § 547(c). There is no dispute that Hellenic’s payment to Texaco was “to or for the benefit of the creditor,” § 547(b)(1), and that it was on the account of an antecedent debt incurred on the delivery of bunker fuel. See § 547(b)(2). Moreover, the honoring of Hellenic’s check by the drawee bank on October 6 was within the 90-day period before the filing of the petition. See § 547(b)(4). Insolvency, the fourth element, is presumed. See § 547(f). Section 547(b), however, is not satisfied unless the payment that enables such creditor to receive more than such creditor would receive if (A) the case were under Chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received" }, { "docid": "23107042", "title": "", "text": "reasonable time to have a check honored for purposes of: —assessing whether a transfer was made before or during the prepetition preference period. 11 U.S.C. § 547(b). —eligibility for the exception for a contemporaneous exchange for new value. 11 U.S.C. § 547(c)(1). —eligibility for the exception for a transfer in the ordinary course of business. 11 U.S.C. § 547(c)(2). Ten days is the reasonable time for having a check honored for purposes of eligibility for the exception for giving of new value. 11 U.S.C. § 547(c)(4). In re Wolf & Vine, 825 F.2d at 197, construing In re Kenitra, 797 F.2d at 790, Shamrock Golf Co. v. Richcraft, Inc., 680 F.2d 645 (9th Cir.1982) (Bankruptcy Act), and McClendon v. Cal-Wood Door (In re Wadsworth Building Components, Inc.), 711 F.2d 122 (9th Cir.1983). As an accommodation to the concern that the transfer-on-delivery rule invites manipulation, the Ninth Circuit has also held that thirty days is the maximum reasonable time for obtaining payment. Thus, any period in excess of thirty days is per se unreasonable. In re Wolf & Vine, 825 F.2d at 202. The ten and thirty-day periods for obtaining payment after a check is delivered are not stormproof safe harbors. Rather, they are periods during which obtaining payment is merely presumed reasonable. As with any other evidentiary presumption, it is rebuttable. Fed.R.Evid. 301. In any particular case, a check that is honored within the presumptive period may, nevertheless, not have been honored by the drawee within a reasonable period after delivery. In such event, the transfer occurs when the check is honored rather than at time of delivery. The second key condition involves intent. One premise of the transfer-on-delivery rule is that the parties regarded the check as the equivalent of cash, i.e. they intended a cash transaction and not a credit transac tion. In holding that a particular payment by check was a cash transaction that did not qualify as an avoidable preference, the Ninth Circuit observed: If it was the intention to extend credit even for a day or to sell the property on credit, there would be" } ]

[ { "docid": "2212880", "title": "", "text": "of the debtor and strictly against the creditor.” Gullickson v. Brown (In re Brown), 108 F.3d 1290, 1292 (10th Cir.1997); In re Reines, 142 F.3d 970, 973 (7th Cir.1998); In re Adlman, 541 F.2d 999, 1003 (2d Cir.1976); 11 U.S.C. § 727(a) (providing that, “[t]he court shall grant the debtor a discharge, unless ... ”). Thus, consistent with the Code, bankruptcy protection and discharge may be denied to a debtor who was less than honest. Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“But in the same breath that we have invoked this ‘fresh start’ policy, we have been careful to explain that the Act limits the opportunity for a completely unencumbered new beginning to the ‘honest but unfortunate debt- or.’ ”) (quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934)); Mayer v. Spanel Int'l Ltd., 51 F.3d 670, 674 (7th Cir.1995) (“Congress concluded that preventing fraud is more important than letting defrauders start over with a clean slate, and we must respect that judgment.”). If a creditor demonstrates by a preponderance of the evidence that the debtor actually intended to hinder, delay, or defraud a creditor, the court can deny the discharge. See In re Keeney, 227 F.3d 679, 683 (6th Cir.2000); In re Scott, 172 F.3d 959, 966-67 (7th Cir.1999); cf. Grogan, 498 U.S. at 286-87, 111 S.Ct. 654. The intent to defraud must be actual and cannot be constructive; however, because it is unlikely that the debtor will admit fraud, intent may be established by circumstantial evidence. See In the Matter of Krehl, 86 F.3d 737, 743-44 (7th Cir.1996); Smiley v. First Natl Bank of Belleville (In the Matter of Smiley), 864 F.2d 562, 566 (7th Cir.1989). B. Objections to Discharge Based on Section 727(a)(2) In order to succeed with an objection to discharge based on section 727(a)(2), the creditor must prove: (1) that the act complained of was done at a time subsequent to one year before the date of the filing of the petition; (2) with actual intent to hinder, delay," } ]

[ { "docid": "20274662", "title": "", "text": "Beacon’s value is attached to ECRM’s value, then the value of Muscarello’s 50% ownership interest in Beacon at the end of 2007 was $11,550 and $7450 in June 2008. For his valuation, Keith utilized gross revenues for the year preceding the closing of ECRM without analyzing profit. (Keith Rpt., Blackburn’s Ex. 2, 6-7; Keith Test., Tr. 3/12/09, 125-26) Keith testified that his ECRM valuation was based on the consistent decline in gross revenue from 2002 to 2006 and that ECRM experienced an operating loss of $25,000 in 2006. (Keith Rpt., Blackburn’s Ex. 2, 6; Keith Test., Tr. 3/12/09, 126-29) Keith did not make any adjustments for income deferred from ECRM’s orders in late 2006 that were deferred to 2007 when ECRM’s business was transferred to Beacon. (Keith Test., Tr. 3/12/09,126-27) DISCUSSION The main purpose of a discharge in bankruptcy is to give a debtor a fresh start. See Vill. of San Jose v. McWilliams, 284 F.3d 785, 790 (7th Cir.2002). The party that seeks to establish an exception to the discharge of a debt bears the burden of proof. Goldberg Secs., Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957 (Bankr.N.D.Ill.1995), The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); see also In re McFarland, 84 F.3d 943, 946 (7th Cir.1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to discharge are to be construed strictly against a creditor and liberally in favor of a debt- or. 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 debtor a fresh start.” Park Nat’l Bank & Trust of Chi. v. Paul (In re Paul)," }, { "docid": "15943922", "title": "", "text": "Cir. BAP 2011), aff'd, 708 F.3d 1123 (9th Cir.2013). De novo review requires that we consider a matter anew, as if no decision had been rendered previously. United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988); B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP 2008). V.DISCUSSION The record reflects that John’s conduct in liquidating and spending the 401 (k) funds entirely for himself without any benefit to the marital community was both irresponsible and reprehensible. The question in this appeal is whether that conduct supports an exception to his chapter 13 discharge consistent with the specific provisions of § 523(a)(4). 1. Generally Applicable Standards in Exception to Discharge Litigation One of the major policy objectives of the Bankruptcy Code is to provide the “honest but unfortunate” debtor with a fresh start. Bugna v. McArthur (In re Bugna), 33 F.3d 1054, 1059 (9th Cir.1994), citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Accordingly, the discharge provisions of the Bankruptcy Code are interpreted liberally in favor of debtors. In re Bugna, 33 F.3d at 1059. “[E]xeeptions to discharge ‘should be confined to those plainly expressed.’ ” Kawaauhau v. Geiger, 523 U.S. 57, 62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998), quoting Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 59 L.Ed. 717 (1915). “In determining whether a particular debt falls within one of the exceptions of section 523, the statute should be strictly construed against the objecting creditor and liberally in favor of the debtor.” 4 Collier on Bankruptcy ¶ 523.05 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2013). Generally, a creditor seeking to except a debt from the debtor’s discharge bears the burden of proof to establish by a preponderance of the evidence all of the elements of the statutory exception to discharge upon which the creditor relies. See Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Edüd 755 (1991). 2. Section 528(a)(1) Elements and Standards Section 523(a)(4) provides that: (a) A discharge under section 727 ... or 1328(b) of" }, { "docid": "12470492", "title": "", "text": "$1,700 to the General Federal Credit Union (to improve the real estate retained by Mr. Crosswhite). This appeal focuses on the debts owed to the bank and the credit union. Mr. Cross-white did not pay those marital obligations. Instead, on November 21, 1994, he filed a bankruptcy petition, as “Crosswhite d/b/a Morrie’s Automotive Specialists,” for relief under Chapter 7 of the United States Bankruptcy Code. When the bank brought suit, Ms. Ginter paid the debt. When the credit union threatened to sue, Ms. Ginter restructured the loan and made monthly payments to pay it. Then Ms. Ginter initiated an adversary proceeding in Mr. Crosswhite’s bankruptcy by filing a complaint to determine the dischargeability of Mr. Crosswhite’s property settlement agreement obligations under 11 U.S.C. § 523(a)(15). The bankruptcy court held that debtor Crosswhite’s property settlement obligations to Ms. Ginter were dischargeable under 11 U.S.C. § 523(a)(15)(B). The district court affirmed the bankruptcy court’s decision. Ms. Ginter has appealed that judgment, and we have jurisdiction over this case pursuant to 28 U.S.C. § 158(d). We conduct a de novo review of the bankruptcy and district courts’ legal interpretations; however, we review the findings of fact entered by the bankruptcy court only for clear error. See In re Reines, 142 F.3d 970, 972 (7th Cir.1998); In re Birkenstock, 87 F.3d 947, 951 (7th Cir.1996). In this case, no underlying facts are in dispute. II DISCUSSION A. Section 523(a) of the Bankruptcy Code lists eighteen categories of debts that are excepted from a debtor’s discharge, i.e., that are not dischargeable. When deciding whether a particular debt falls within a § 523 exception, courts generally construe the statute strictly against the objecting creditor and liberally in favor of the debtor in order to give the debtor a better chance at a fresh start. See Reines, 142 F.3d at 972-73. Consequently, the party claiming an exception to discharge usually bears the burden of proving by a preponderance of the evidence that the debt is not dischargeable. See Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Bero, 110 F.3d" }, { "docid": "1563117", "title": "", "text": "described Huisman as a direct competitor. She claimed that some of the lines that the Company had lost, such as Nature’s Own and Great Finds, took on Huisman as a sales repping organization after Reath joined Huisman. The plaintiff believed that after Reath and the other Company sales reps joined Huisman, Huisman’s Philadelphia sales rep approached many of the same retailers serviced by the Company. The plaintiff asserted that the Company not only sold “garden center oriented” lines, but that garden centers, including some big accounts, could and did carry more conventional giftware. Reath filed his Chapter 7 bankruptcy petition on December 15, 2004, listing the plaintiff, trading as the Company, as an unsecured creditor. On March 21, 2005, the plaintiff filed this adversary proceeding against the debtor. She asserts that, because of the debtor’s disloyalty to her and her Company, as well as the debtor’s related breaches of the Agreement and his responsibilities as the Company’s Sales Manager, any debt due her from Reath is non-dischargeable under 11 U.S.C. §§ 523(a)(2) and (a)(6). That is, the plaintiff claims that Reath’s conduct constituted “false pretenses, a false representation, or actual fraud,” and that Reath inflicted injuries upon her with the required “willful and malicious” intent. DISCUSSION The Bankruptcy Code (“Code”) is designed to relieve debtors from the weight of oppressive indebtedness and to provide them with a “fresh start.” In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995). This “fresh start” is available only to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991); In re Fegeley, 118 F.3d 979, 983 (3d Cir.1997); In re DeBaggis, 247 B.R. 383, 388 (Bankr.D.N.J.1999). Not all debts owed by an individual debtor are discharged in bankruptcy. Certain debts, listed in section 523, are excepted from discharge. The plaintiff has the burden of establishing all elements of a section 523 exception to discharge by a preponderance of the evidence. Grogan, 498 U.S. at 287-88, 111 S.Ct. at 659-60. Exceptions to discharge are to be construed strictly against creditors and liberally in favor of" }, { "docid": "17540662", "title": "", "text": "be construed strictly against the Plaintiff and liberally in favor of the Defendant. See 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). 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.” Paul, 266 B.R. at 693. 1. Section 523(a)(2)(A) Section 523(a)(2)(A) of the Code 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, other than a statement respecting the debtor’s or an insider’s financial condition^]” 11 U.S.C. § 523(a)(2)(A). Three separate grounds for dischargeability are included under section 528(a)(2)(A): false pretenses, false representation, and actual fraud. Id. To except a debt from discharge based on false pretenses or false representation, a creditor must establish that: (1) the debtor made a false representation of fact, a representation (2) which the debtor (a) either knew was false or made with reckless disregard for its truth and (b) made with an intent to deceive, (3) upon which the creditor justifiably relied. Ojeda v. Goldberg, 599 F.3d 712, 716-17 (7th Cir.2010); In re Bero, 110 F.3d 462, 465 (7th Cir.1997); Citibank (S.D.), N.A. v. Michel, 220 B.R. 603, 605 (N.D.Ill.1998); Deady v. Hanson (In re Hanson), 432 B.R. 758, 771 (Bankr.N.D.Ill.2010); Baermann v. Ryan (In re Ryan), 408 B.R. 143, 156 (Bankr.N.D.Ill.2009). Under section 523(a)(2)(A), a false representation is an express misrepresentation that can be demonstrated either by a spoken or written statement or through conduct. New Austin Roosevelt Currency Exch., Inc. v. Sanchez (In re Sanchez), 277 B.R. 904, 908 (Bankr.N.D.Ill.2002); Rae v. Scarpello (In re Scarpello), 272 B.R. 691, 700 (Bankr.N.D.Ill.2002). Additionally, “[a] debtor’s silence regarding a material fact can constitute a false representation under [section] 523(a)(2)(A).” Hanson, 432 B.R. at 772 (internal quotation omitted). In contrast, false pretenses include “implied misrepresentations or conduct intended to create and foster a false impression.” Mem’l Hosp. v. Sarama (In re Sarama), 192 B.R. 922, 927" }, { "docid": "20274663", "title": "", "text": "the burden of proof. Goldberg Secs., Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957 (Bankr.N.D.Ill.1995), The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); see also In re McFarland, 84 F.3d 943, 946 (7th Cir.1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to discharge are to be construed strictly against a creditor and liberally in favor of a debt- or. 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 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). Section 523 of the Bankruptcy Code enumerates specific, limited exceptions to the dischargeability of debts. A. 11 U.S.C. § 523(a)(4) Section 523(a)(4) provides as follows: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt— (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny[.] 11 U.S.C. § 523(a)(4). The meaning of these terms is a question of federal law. In re Burke, 398 B.R. 608, 625 (Bankr.N.D.Ill.2008) (citing In re McGee, 353 F.3d 537, 540 (7th Cir.2003)). Most courts apply the general rule that the creditor bears the burden of proof in a proceeding to determine the dischargeability of a debt under section 523(a)(4). Fowler Bros. v. Young (In re Young), 91 F.3d 1367 (10th Cir.1996); Coburn Co. v. Nicholas (In re Nicholas), 956 F.2d 110 (5th Cir.1992); 4 Collier, ¶ 523.10[1][c], “Fraud” for purpose of this exception has generally been interpreted as involving intentional deceit, rather than implied or constructive fraud. In re Tripp, 189 B.R. 29 (Bankr.N.D.N.Y.1995);" }, { "docid": "17540661", "title": "", "text": "give preclusive effect to that judgment order. B. The Dischargeability of Debt Under Section 523(a) The court now turns to the statutory exceptions to discharge under section 523(a) of the Bankruptcy Code that have been invoked by the Plaintiff. The discharge provided by the Code is meant to effectuate the “fresh start” goal of bankruptcy relief. Vill. of San Jose v. McWilliams, 284 F.3d 785, 790 (7th Cir.2002). As the party seeking to establish an exception to the discharge of a debt, the Plaintiff bears the burden of proof. See Goldberg Sec., Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957 (Bankr.N.D.Ill.1995). The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan, 498 U.S. at 291, 111 S.Ct. 654; see also In re McFarland, 84 F.3d 943, 946 (7th Cir.1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to discharge are to be construed strictly against the Plaintiff and liberally in favor of the Defendant. See 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). 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.” Paul, 266 B.R. at 693. 1. Section 523(a)(2)(A) Section 523(a)(2)(A) of the Code 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, other than a statement respecting the debtor’s or an insider’s financial condition^]” 11 U.S.C. § 523(a)(2)(A). Three separate grounds for dischargeability are included under section 528(a)(2)(A): false pretenses, false representation, and actual fraud. Id. To except a debt from discharge based on false pretenses or false representation, a creditor must establish that: (1) the debtor made a false representation of fact, a representation (2) which the debtor (a) either knew was false or" }, { "docid": "20242439", "title": "", "text": "the debts be excepted from discharge under 11 U.S.C. § 523(a)(4). The Debtor filed an answer to the complaint wherein he denied the material allegations contained in the complaint. In addition, the Debtor asserted two affirmative defenses: (1) the complaint is based upon the Venture Agreement and promissory notes between the Creditor and H & W, and, thus, the complaint fails to state a claim upon which relief can be granted against the Debtor; and (2) the Debtor reserves the right to assert any other claims or defenses as may become available. On March 12, 2010, the Court held an evidentiary hearing in this matter. The Creditor moved for a judgment on partial findings pursuant to Federal Rule of Civil Procedure 52 and its bankruptcy analog Federal Rule of Bankruptcy Procedure 7052. Pursuant to Bankruptcy Rule 7052(c), the Court reserved ruling on the motion until the close of all the evidence. Thereafter, the Court took the matter under advisement. The Court grants the Creditor’s motion in part because he has proven all of the requisite elements under § 523(a)(2)(A) with respect to the $350,000 and $49,000 debts, but has not demonstrated all of the elements pursuant to § 523(a)(4) as discussed infra. III. APPLICABLE STANDARDS A. Exceptions to the Discharge of a Debt The discharge provided by the Bankruptcy Code is meant to effectuate the “fresh start” goal of bankruptcy relief. Vill. of San Jose v. McWilliams, 284 F.3d 785, 790 (7th Cir.2002). The party seeking to establish an exception to the discharge of a debt bears the burden of proof. Goldberg Secs., Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957 (Bankr.N.D.Ill.1995). The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). See also In re McFarland, 84 F.3d 943, 946 (7th Cir. 1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to" }, { "docid": "21502055", "title": "", "text": "fact is “material” if, under the governing law, it could have an effect on the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute over a material fact is “genuine” if a rational trier of fact could find in favor of the non-moving party on the evidence presented. Id. There are no material facts in dispute in this case. Judgment as a matter of law is therefore appropriate. Sensient bears the burden of proving the debt exists and that the debt is of the type excepted from discharge under § 523(a)(8). Educ. Credit Mgmt. Corp. v. Savage (In re Savage), 311 B.R. 835, 839 (1st Cir. BAP 2004) (citing Bloch v. Windham Prof'ls (In re Bloch), 257 B.R. 374, 377 (Bankr.D.Mass.2001)). Once that burden is met, the debt is discharged only if the Debtor proves undue hardship. Id. The Debtor here is not claiming undue hardship, and the only issue is whether the Debtor’s obligations under the Sensient program fall within the definitions of § 523(a)(8). Exceptions to discharge are construed narrowly against a creditor and liberally in the debtor’s favor. Kolodziej v. Reines (In re Reines), 142 F.3d 970, 972 (7th Cir.1998). This construction is consistent with the Bankruptcy Code’s purpose of giving a debtor a fresh start following bankruptcy. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). A narrow construction allows an “honest but unfortunate debtor” to emerge from bankruptcy with the ability to start over with a clean slate. Id. at 287, 111 S.Ct. 654. Although exceptions to discharge are strictly construed, a court must look to the plain meaning of a statute to determine its scope. DeKalb County Div. of Family Serv. v. Platter (In re Platter), 140 F.3d 676, 681 (7th Cir.1998). In addition to the particular statutory language at issue, a court should examine the structure and delineation of the text. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) (citing Bethesda Hosp. Ass’n v. Bowen," }, { "docid": "17577649", "title": "", "text": "9:40:10). 37. The Debtor exhausted the funds a few months after the § 341 Meeting of Creditors was held in her chapter 7 bankruptcy case. (N.T. 10:04:55). 38. The Debtor was aware of the confessed judgment against her and Circles when she withdrew the money from the segregated account. (N.T. 9:24:25). 39. The Debtor also was aware that her conduct would cause injury to the Plaintiffs property rights when she withdrew the money from the segregated account to use for her own benefit. IV. DISCHARGEABILITY UNDER 11 U.S.C. § 523 Generally speaking, the Bankruptcy Code seeks to promote two important policy interests: “to give the debtor a new financial start and to keep creditors on an equal playing field.” In re Calabrese, 689 F.3d 312, 320 (3d Cir.2012). To achieve the objective of a fresh start, the Bankruptcy Code provides debtors a discharge of their prepetition debts. Congress recognized, however, that the policy had to yield in some respects, to balance between the competing interests of debtors and creditors. The discharge is therefore, not absolute. The statutory exceptions to discharge are found in § 523(a). These exceptions are construed strictly against creditors and liberally in favor of debtors. E.g., In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995); In re Vidal, 2012 WL 3907847, *15 (Bankr.E.D.Pa. Sept. 7, 2012). A creditor objecting to the dischargeability of a debt bears the burden of proof. Cohn, 54 F.3d at 1113; In re Bittar, 2012 WL 1605160, *2 (Bankr.D.N.J. May 8, 2012). The creditor must establish the nondischargeability of the debt by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re August, 448 B.R. 331, 357 (Bankr.E.D.Pa.2011) (citations omitted). Section 523(a)(6) specifically excepts from discharge any debt for \"willful and malicious injury by the debtor to another entity or to the property of another entity.\" 11 U.S.C. § 523(a)(6). To invoke the 523(a)(6) exception, the creditor must prove not only that injury has resulted, but also that the debtor's conduct was both \"willful\" and \"malicious.\" E.g., In re Vepun, 2009 WL" }, { "docid": "20242440", "title": "", "text": "elements under § 523(a)(2)(A) with respect to the $350,000 and $49,000 debts, but has not demonstrated all of the elements pursuant to § 523(a)(4) as discussed infra. III. APPLICABLE STANDARDS A. Exceptions to the Discharge of a Debt The discharge provided by the Bankruptcy Code is meant to effectuate the “fresh start” goal of bankruptcy relief. Vill. of San Jose v. McWilliams, 284 F.3d 785, 790 (7th Cir.2002). The party seeking to establish an exception to the discharge of a debt bears the burden of proof. Goldberg Secs., Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957 (Bankr.N.D.Ill.1995). The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). See also In re McFarland, 84 F.3d 943, 946 (7th Cir. 1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to 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" }, { "docid": "12470493", "title": "", "text": "de novo review of the bankruptcy and district courts’ legal interpretations; however, we review the findings of fact entered by the bankruptcy court only for clear error. See In re Reines, 142 F.3d 970, 972 (7th Cir.1998); In re Birkenstock, 87 F.3d 947, 951 (7th Cir.1996). In this case, no underlying facts are in dispute. II DISCUSSION A. Section 523(a) of the Bankruptcy Code lists eighteen categories of debts that are excepted from a debtor’s discharge, i.e., that are not dischargeable. When deciding whether a particular debt falls within a § 523 exception, courts generally construe the statute strictly against the objecting creditor and liberally in favor of the debtor in order to give the debtor a better chance at a fresh start. See Reines, 142 F.3d at 972-73. Consequently, the party claiming an exception to discharge usually bears the burden of proving by a preponderance of the evidence that the debt is not dischargeable. See Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Bero, 110 F.3d 462, 465 (7th Cir.1997). That policy of protecting and favoring the debtor is tempered, however, when the debt arises from a divorce or separation agreement. See 4 Lawrence P. King, Collier on Bankruptcy ¶¶ 523.05, 523.11[2] (15th ed. rev.1998) (stating that, with respect to enforcement of obligations for spousal and child support, Congress “has overridden the general bankruptcy policy in which exceptions to discharge are construed narrowly” against a creditor). Bankruptcy law has had a longstanding corresponding policy of protecting a debtor’s spouse and children when the debtor’s support is required. See Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 49 L.Ed. 390 (1904) (“The bankruptcy law should receive such an interpretation as will effectuate its beneficent purposes and not make it an instrument to deprive dependent wife and children of the support and maintenance due them from the husband and father, which it has ever been the purpose of the law to enforce.”); Shine v. Shine, 802 F.2d 583, 585-86 (1st Cir.1986) (“The exception from discharge for alimony and payments for maintenance" }, { "docid": "21174437", "title": "", "text": "wrongful conduct. She contends that most of the GWFS business expenses were paid from the Rank One Account that was not sold to GWFS. In addition, the Debtor maintains that the cheeks written from the Bank One Account and the Hinsbrook account were written with the express knowledge and authorization of Peter Vozella. According to the Debtor, Janet Vozella, using Glen-bard Travel as a ticket broker, was realizing ticket sales obtained through GWFS without GWFS receiving its share of the commissions due on the sales. Thus, the Debtor contends wrongful conduct by some of the Plaintiffs, but not by her. IV. DISCUSSION A. Exceptions to the Discharge of a Debt The main purpose of a discharge in bankruptcy is to give a debtor a fresh start. See Vill. of San Jose v. McWilliams, 284 F.3d 785, 790 (7th Cir. 2002). The party seeking to establish an exception to the discharge of a debt bears the burden of proof. Selfreliance Fed. Credit Union v. Harasymiw (In re Harasymiw), 895 F.2d 1170, 1172 (7th Cir.1990); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 961 (Bankr.N.D.Ill.1995). The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); see also In re McFarland, 84 F.3d 943, 946 (7th Cir. 1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to discharge are to be construed strictly against a credi tor 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); Goldberg Secs. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); 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" }, { "docid": "20274701", "title": "", "text": "v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957 (Bankr.N.D.Ill.1995). The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); see also In re McFarland, 84 F.3d 943, 946 (7th Cir.1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to discharge are to be construed strictly against a creditor and liberally in favor of a debt- or. 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 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). Section 523 of the Bankruptcy Code enumerates specific, limited exceptions to the dischargeability of debts. Section 523(a)(6) provides as follows: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entityf.] 11 U.S.C. § 523(a)(6). Debtors first request that the Court reconsider its ruling under 11 U.S.C. § 523(a)(6) for $300,453.04 in damages from the “Ten Percent Agreement.” In an order dated June 11, 2009, pursuant to 11 U.S.C. § 523(a)(6), the Court entered judgment in favor of Muscarello and against Debtors on Counts I and IV of the adversary complaint in the amount of $385,638.04, including $300,453.04 from the “Ten Percent Agreement.” Count I was brought derivatively on behalf of ECRM, while Count IV was brought individually by Muscarello. The “Ten Percent Agreement” allocation in the damages is not recoverable in Count I, as part of the derivative claim, because ECRM cannot owe money to itself. Regarding Count IV, pursuant to 11 U.S.C." }, { "docid": "21174438", "title": "", "text": "Co. v. Bryson (In re Bryson), 187 B.R. 939, 961 (Bankr.N.D.Ill.1995). The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); see also In re McFarland, 84 F.3d 943, 946 (7th Cir. 1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to discharge are to be construed strictly against a credi tor 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); Goldberg Secs. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); 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). B. 11 U.S.C. § 523(a)(2) Pursuant to Count III of the complaint, the Plaintiffs allege that the Debtor made several false statements of material fact, including that she would transfer FSI’s goodwill and assets to GWFS in order to grow GWFS’s business, and that GWFS had insufficient funds to pay its vendors and business expenses. According to the Plaintiffs, the Debtor’s statements and representations were material and she knew her statements were false. The Plaintiffs allege that the Debtor made those false statements in order to induce them to contribute funds to pay GWFS’s expenses, execute the Agreement, and obligate themselves personally on corporate loans. Finally, the Plaintiffs allege that they relied on the Debtor’s false statements and representations and that their reliance was reasonable. 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" }, { "docid": "20274700", "title": "", "text": "the Federal Rule of Bankruptcy Procedure 9023, Federal Rule of Civil Procedure 59(e) applies in cases under the Bankruptcy Code. Fed. R. Bankr.P. 9023. Rule 59(e) allows a party to direct the district court’s attention to newly discovered material evidence or a manifest error of law or fact, and enables the court to correct its own errors and thus avoid the unnecessary appellate procedures. The rule does not provide a ve- hide for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment. Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996) (citations omitted). The main purpose of a discharge in bankruptcy is to give a debtor a fresh start. See Vill. of San Jose v. McWilliams, 284 F.3d 785, 790 (7th Cir.2002). The party that seeks to establish an exception to the discharge of a debt bears the burden of proof. Goldberg Secs., Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir.1992); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957 (Bankr.N.D.Ill.1995). The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); see also In re McFarland, 84 F.3d 943, 946 (7th Cir.1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to discharge are to be construed strictly against a creditor and liberally in favor of a debt- or. 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 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). Section 523 of" }, { "docid": "1563118", "title": "", "text": "is, the plaintiff claims that Reath’s conduct constituted “false pretenses, a false representation, or actual fraud,” and that Reath inflicted injuries upon her with the required “willful and malicious” intent. DISCUSSION The Bankruptcy Code (“Code”) is designed to relieve debtors from the weight of oppressive indebtedness and to provide them with a “fresh start.” In re Cohn, 54 F.3d 1108, 1113 (3d Cir.1995). This “fresh start” is available only to the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991); In re Fegeley, 118 F.3d 979, 983 (3d Cir.1997); In re DeBaggis, 247 B.R. 383, 388 (Bankr.D.N.J.1999). Not all debts owed by an individual debtor are discharged in bankruptcy. Certain debts, listed in section 523, are excepted from discharge. The plaintiff has the burden of establishing all elements of a section 523 exception to discharge by a preponderance of the evidence. Grogan, 498 U.S. at 287-88, 111 S.Ct. at 659-60. Exceptions to discharge are to be construed strictly against creditors and liberally in favor of debtors. Cohn, 54 F.3d at 1113. To assert that her claim is non-dis-chargeable, the plaintiff relies on sections 523(a)(2)(A) and 523(a)(6) of the Bankruptcy Code. 1. Section 528(a)(2)(A) Debts based upon fraud are nondis-chargeable pursuant to 11 U.S.C. § 523(a)(2)(A), which provides: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (2)for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by— (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. Section 523(a)(2)(A) does not define the terms false pretenses, false representation, or actual fraud. Nor does the section expressly refer to elements such as reliance, materiality or intent. Nonetheless, courts have routinely inferred requirements establishing intent, reliance and materiality in applying section 523(a)(2)(A). See, e.g., In re Menna, 16 F.3d 7 (1st Cir.1994); In re Martin, 963 F.2d 809 (5th Cir.1992); In re Phillips, 804 F.2d 930 (6th Cir.1986). The frauds covered" }, { "docid": "3766344", "title": "", "text": "alleged in the first amended original petition, meets the requisite elements for a finding of non-dischargeability under § 523. B. Exceptions to the Discharge of a Debt The discharge provided by the Bankruptcy Code is meant to effectuate the “fresh start” goal of bankruptcy relief. Vill. of San Jose v. McWilliams, 284 F.3d 785, 790 (7th Cir.2002). The party seeking to establish an exception to the discharge of a debt bears the burden of proof. Goldberg Secs., Inc. v. Scarlata (In re Scarlata), 979 F.2d 521, 524 (7th Cir. 1992); Banner Oil Co. v. Bryson (In re Bryson), 187 B.R. 939, 957 (Bankr.N.D.Ill.1995). The United States Supreme Court has held that the burden of proof required to establish an exception to discharge is a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). See also In re McFarland, 84 F.3d 943, 946 (7th Cir. 1996); In re Thirtyacre, 36 F.3d 697, 700 (7th Cir.1994). Exceptions to 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). “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," }, { "docid": "17547811", "title": "", "text": "Vicarios would not be calling Alanna in their case-in-chief, and (2) if within the rules, Judge Doyle would allow Plaintiffs to call Alanna as a rebuttal witness. (Tr. 132:15-138:1-3.) During this conversation, Plaintiffs went so far as to reserve the right to call Alanna in a rebuttal case, if necessary. (Tr. 136:13-16.) Having failed to avail themselves of those opportunities to elicit Alanna’s testimony, Plaintiffs cannot point the finger at Judge Doyle’s interlocutory ruling as having prejudiced their case. In sum, the bankruptcy court’s reconsideration of Alanna Vicario’s Rule 52(c) motion after it heard all of the evidence was not an abuse of discretion and thus provides no reason to disturb the result in this case. C. Plaintiffs’ Substantive Arguments Having resolved Plaintiffs’ procedural arguments, the Court moves to their challenge of the bankruptcy court’s judgment on Counts I through IV. The primary benefit of filing for bankruptcy under Chapter 7 is that the financial discharge offered by the Bankruptcy Code gives the debtor an opportunity for a “fresh start.” Stamat v. Neary, 635 F.3d 974, 978 (7th Cir.2011) (citing In re Chambers, 348 F.3d 650, 653 (7th Cir.2003)). Nevertheless, this privilege is reserved for the “honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (internal quotation marks and citation omitted); see Peterson v. Scott (In re Scott), 172 F.3d 959, 966 (7th Cir.1999). The Bankruptcy Code provides that a bankruptcy court “shall grant the debtor a discharge,” but then lists a number of exceptions that deny the privilege of discharge to debtors who have been less than honest. § 727(a). In their amended complaint, Plaintiffs objected to the Vicar-ios’ discharge on the basis of four of these exceptions—§ 727(a)(4)(A); § 727(a)(2); § 727(a)(4)(D); and § 727(a)(3). Plaintiffs now argue that the district court erred in its ruling as to each. As objectors, Plaintiffs must establish grounds for denial of discharge under § 727(a) by a preponderance of the evidence. In re Scott, 172 F.3d 959, 966 (7th Cir.1999). The Court construes exceptions to discharge “strictly against a creditor and liberally" }, { "docid": "16018673", "title": "", "text": "November 3, 2000. DISCUSSION In a non-dischargeability claim the burden of proof falls on the creditor to prove the elements by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991) (“we hold that the standard of proof for the dischargeability exceptions in 11 U.S.C. § 523(a) is the ordinary preponderance-of-the-evidence standard.”); In re Branam, 226 B.R. 45, 52 (9th Cir. BAP 1998), aff'd, 205 F.3d 1350 (9th Cir.1999). A creditor’s burden, in conjunction with the “fresh start” policy of the Bankruptcy Code, creates a sizeable obstacle for creditors to overcome in order to prevail on a non-dischargeability complaint. In re Ballew, 18 Mont.B.R. 404, 410-11 (Bankr.Mont.2000). As the Ninth Circuit Court of appeals stated: One of the fundamental policies of the Bankruptcy Code is the fresh start afforded debtors through the discharge of their debts. In re Devers, 759 F.2d 751, 754-55 (9th Cir.1985). In order to effectuate the fresh start policy, exceptions to discharge should be strictly construed against an objecting creditor and in favor of the debtor. In re Klapp, 706 F.2d 998, 999 (9th Cir.1983). Snoke v. Riso (In re Riso), 978 F.2d 1151, 1154 (9th Cir.1992); see also, In re Kidd, 219 B.R. 278, 282, 16 Mont.B.R. 382, 386 (Bankr.Mont.1998). I. Collateral Estoppel At trial the Court declined to give collateral estoppel effect to Sparks’ default judgment against King entered in the justice court in consolidated Cause Nos. 1CV99-337 and 2CV99-401. As explained by the BAP in In re Baldwin, 245 B.R. 131, 134 (9th Cir. BAP 2000): The doctrine of collateral estoppel, or issue preclusion, is intended to protect parties from multiple lawsuits and the possibility of inconsistent decisions, and to preserve judicial resources. See Kelly v. Okoye (In re Kelly), 182 B.R. 255, 258 (9th Cir. BAP 1995), aff'd, 100 F.3d 110 (9th Cir.1996). Collateral estoppel applies in dischargeability proceedings. See Grogan v. Garner, 498 U.S. 279, 284-85, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The burden of proof is on the party seeking to assert collateral estop-pel and in order to sustain" } ]

[ { "docid": "15426923", "title": "", "text": "to control a disturbance does not rise to the level of an eighth amendment violation unless officials acted “in bad faith and for no legitimate purpose.” Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986). We accord prison officials great deference and will not substitute our judgment for theirs concerning the reasonableness of the alternative chosen to control a disruptive situation. We are satisfied that prison officials at the Nebraska State Penitentiary acted in good faith to restore order in the adjustment center and that each of the restrictions imposed had a penological justification. Appellants first challenge the dietary restrictions that prison officials imposed during the lockdown in response to the prisoners’ improper use of food. Prisoners had been throwing hot food at the guards and into the gallery, and had contaminated the food supply by throwing urine and fecal matter onto the food cart. Prison officials did not consult the prison dietician regarding the nutritional adequacy of the restricted diet, which consisted of water and two cold sandwiches three times a day. Prisoners are guaranteed a reasonably adequate diet, Campbell v. Cauthron, 623 F.2d 503, 508 (8th Cir.1980), and a diet, such as this one, without fruits and vegetables might violate the eighth amendment if it were the regular prison diet. The district court correctly determined, however, that because the sandwich diet was imposed only for a short time, with no resultant long-term adverse effects, it was a constitutionally permissible response to the disruptive situation. Second, appellants contend that the cancellation of yard privileges violates the eighth amendment. The prisoners normally received five hours of yard time per week. Because altercations between staff and prisoners arose when prisoners moved to and from the exercise yard, yard privileges were suspended from May 22-June 3, 1985. In Leonard v. Norris, 797 F.2d 683, 685 (8th Cir.1986), we found no eighth amendment violation when a prisoner in punitive confinement was deprived of out-of-cell exercise for fifteen days. We deferred to prison officials in imposing restrictions to discourage disruptive behavior that makes an inmate unfit to circulate among" } ]

[ { "docid": "6883833", "title": "", "text": "rejecting the assistance of court-appointed counsel and that, in any event, he had not alleged prejudice or injury. As for the remaining conditions-of-confinement claims in Part Two, the court dismissed those claims without prejudice because they were “vague,” did not “sufficiently connect” the defendants to the alleged conditions, and did not show physical injury as required by 42 U.S.C. § 1997e(e). I. The Due Process Clause prohibits any kind of a pretrial detainee. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.1996). The protections extended to pretrial detainees under the Due Process clause are at least as extensive as the protections against cruel and unusual punishment extended to prisoners by the Eighth Amendment. See Collignon v. Milwaukee County, 163 F.3d 982, 987 (7th Cir.1998). The Eighth Amendment requires that inmates be furnished with basic human needs. See Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Prison officials violate the Eighth Amendment in conditions of confinement cases where (1) the alleged deprivation is “sufficiently serious” (the objective standard) and (2) the officials act with “deliberate indifference,” (the subjective standard). Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Part Two of Sanders’ complaint raises a number of conditions-of-confinement claims that warrant more careful consideration than was provided by the district court. The court has dismissed these claims in part because they were “vague” — a determination that runs counter to liberal notice pleading standards. First, for instance, Sanders alleges that the Jail served nutritionally-inadequate food causing him to suffer malnutrition, which, in turn, prevented him from exercising. We considered a similar allegation in Antonelli, where we reversed the dismissal of a pro se prisoner’s claim that he had received “not just ransid food” [sic], but also a “nutritionally deficient” diet. 81 F.3d at 1432. Because Sanders’ claim of receiving meals containing “insufficient vitamins to prevent degeneration mentally or physically” fairly resembles the plaintiffs claim in Antonelli, the district court prematurely dismissed this claim. Second, Sanders alleges that" }, { "docid": "22647644", "title": "", "text": "“harassment” cannot reasonably be said to deter the average citizen of ordinary firmness. Two-thirds of most American meals are typically eaten cold. Cold cereal or a bagel for breakfast and a sandwich for lunch are standard American fare. Our military defends the nation in times of war on a-diet of cold food rations. And cold food is not always a matter of expediency. Steak tartare and shrimp cocktail, served in the finest restaurants, are served cold. One man’s vichyssiose is another man’s cold potato soup. In short, it is absurd to think that being served cold food, even on a long-term basis, might “chill” anyone — criminal or noncriminal — from filing a lawsuit. If anything, such a holding “would trivialize the First Amendment.” See Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982). Judge Posner’s observations bear repeating: Yet even in the field of constitutional torts de minimis non curat lex. Section 1983 is a tort statute. A tort to be actionable requires injury. It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise .... Id; see also Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (“There is, of course, a de minimis level of imposition with which the Constitution is not concerned.”). Furthermore, cold food apparently is an ordinary incident in prison life. See, e.g., Dean v. Campbell, No. 97-5955, 1998 WL 466137, at *2 (6th Cir. July 30, 1998) (per curiam) (holding that allegation of cold meals for a short period of time “failfed] to allege facts showing that [prisoner] was subjected to the type of extreme deprivations which are necessary for an Eighth Amendment conditions of confinement claim”); Johnson v. Horn, 150 F.3d 276, 282 (3d Cir.1998) (holding that serving cold instead of hot kosher food to inmate did not violate prisoner’s First Amendment rights); Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir.1992) (holding that prisoner’s constitutional rights were not violated when he was served" }, { "docid": "16860210", "title": "", "text": "medically appropriate food choices and given “snacks” when necessary to raise his blood sugar). And a California district court held that a prisoner who received the “Heart Healthy” diet provided to all inmates in the state prison system and failed to present evidence that he could not eat certain menu items or that the “overall percentage” of such items in each meal was significant could not survive summary judgment on his deliberate indifference claim. Baird v. Alameida, 407 F.Supp.2d 1134, 1140-41 (C.D. Cal. 2005). We find these decisions persuasive. Only an “extreme deprivation” is actionable under the Eighth Amendment. According to Plaintiff, the meals in the Special Housing Unit included “a bread, a meat product!,] a vegetable!,] and a sweet dessert.” J.A. 279. Plaintiff has not offered evidence that there was no combination of foods in each meal that would have provided him with adequate sustenance without causing adverse medical consequences, instead asserting only that the meals were high in sugar and accompanied by a sugary drink. Plaintiff also does not contradict prison officials’ claims that he was educated on how to eat the available meals (which were from the “national diet” “approved for all” inmates, J.A. 462, 539) in a way that would not exacerbate his diabetic condition. Accordingly, the district court properly awarded Warden Stansberry summary judgment on Plaintiffs diet and nutrition claim. IV. Having determined that Plaintiffs claims against Dr. Phillip and Administrator McClintoek should go forward, we must address Defendants’ argument that they are entitled to qualified immunity. Defendants raised qualified immunity before the district court, but because the court ruled for Defendants on the merits, it did not reach the question of Defendants’ entitlement to qualified immunity. Qualified immunity may provide a basis for affirming the district court. R.R. ex rel. R. v. Fairfax Cty. Sch. Bd., 338 F.3d 325, 332 (4th Cir. 2003) (“[W]e may affirm the district court’s judgment on any ground properly raised below.”) (citing Nw.. Airlines, Inc. v. Cty. of Kent, 510 U.S. 355, 364, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994)). Qualified immunity shields “government' officials performing discretionary functions .,." }, { "docid": "3874019", "title": "", "text": "into account the nine month period in which Hearns was subjected to these conditions of confinement. “The circumstances, nature, and duration of a deprivation of [ ] necessities must be considered in determining whether a constitutional violation has occurred.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.2000). Hearns alleged serious health hazards in the disci plinary segregation yard, including toilets that did not work; sinks that were rusted and stagnant pools of water infested with insects; and a lack of cold water even though the temperatures in the prison yard exceeded one hundred degrees. Hearns, in his complaint, asserted that these conditions kept him from using the yard. In one hundred degree plus weather, lack of drinkable water can be dangerous, thus precluding use of the yard! We need not decide whether the other allegations regarding the condition of the yard would independently, if proved, establish unconstitutional conditions, because with allegations that there was a lack of drinkable water, the complaint is sufficient to state a cause of action. The allegations in Hearns’s complaint are not entirely clear with regard to whether there was no water available, no cold water available, or no ice water available. Nonetheless, Hearns complained of “health hazards” and “serious health concerns,” requested “clean water containers,” and alleged very high temperatures of “over 100 degrees plus.” For purposes of a 12(b)(6) motion, these allegations are adequate to state a claim of unconstitutional prison conditions. Cf. Keenan, 83 F.3d at 1089-92 (recognizing that deprivation of outdoor exercise, excessive noise, 24 hour lighting, and inadequate ventilation, food, and water violate the Eighth Amendment rights of inmates); see also Johnson, 217 F.3d at 732 (noting that “[m]ore modest deprivations can also form the objective basis of a violation, but only if such deprivations are lengthy or ongoing”). Accordingly, we conclude that the district court erred in dismissing Hearns’s “conditions-of-confinement” claim. III. CONCLUSION “A complaint should not be dismissed [under 12(b)(6)] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Thompson v." }, { "docid": "17944617", "title": "", "text": "dismissal of a prisoner’s complaint alleging that the prison had not provided him with an “ulcer diet,” although the prison doctor had ordered such a diet for him. The Court held that the complaint, even if considered to state a due process claim, was frivolous and that no civil rights had been violated, since “there are no sufficient allegations of any serious bodily harm to appellant.” Id. at 1001. Similarly, the First Circuit has affirmed dismissal of an Eighth Amendment claim grounded in lack of “hot meals,” since the record showed that three meals were provided daily. Hoitt v. Vitek, 497 F.2d 598, 601 (1st Cir.1974). See also, Sweet v. South Carolina Department of Corrections, 529 F.2d 854, 862-863 (4th Cir.1975). The fact that a plaintiff’s taste may be offended by the manner in which food is prepared has not been considered to be a matter for a federal court unless a health hazard was created thereby. Feazell v. Augusta County Jail, 401 F.Supp. 405 (W.D.Va.1975). See also, Lunsford v. Reynolds, 376 F.Supp. 526 (W.D.Va.1974). In a case where a prisoner alleged that “he was given watery gravy and oatmeal with no sugar,” the Court dismissed the complaint, saying simply that those allegations “do not arise to constitutional deprivations even assuming their veracity.” Cassidy v. Edwards, 392 F.Supp. 337, 338 (W.D.Va.1975). Finally, addressing itself to a claim that a prisoner was deliberately served cold or unpalatable food, one Court has held that such allegations do not state a constitutionally cognizable claim if prisoners are otherwise adequately fed. Boston v. Stanton, 450 F.Supp. 1049, 1055 (W.D.Mo.1978). Running through each of the foregoing cases is the consistent thesis, either express or implicit, that absent actual harm, there is no cognizable constitutional claim for alleged inadequacies in institutional food. Cases cited by plaintiffs to this Court are not to the contrary. Indeed, those cases emphasize the importance, in this context, of the presence of a real and substantial threat of harm from the food served. For instance, in Murphy v. Wheaton, 381 F.Supp. 1252 (N.D.Ill.1974), it was alleged not just that food was" }, { "docid": "23707395", "title": "", "text": "v. City of Alton, 539 F.3d 724, 732 (7th Cir.2008). Summary judgment is proper where “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In resolving a summary judgment motion, we draw all reasonable inferences and resolve factual disputes in favor of the non-moving party. Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir.2000). Pursuant to 42 U.S.C. § 1983, Knight claims that defendants-appellees violated his Eighth and Fourteenth Amendment right to be free from cruel and unusual punishment by acting with deliberate indifference to his serious medical needs. Section 1983 creates a cause of action against “[e]very 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.” 42 U.S.C. § 1983. Since a § 1983 cause of action is against a “person,” in order “[t]o recover damages under § 1983, a plaintiff must establish that a defendant was personally responsible for the deprivation of a constitutional right.” Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir.2006) (citing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.1995)). To be personally responsible, an official “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye.” Id. The Eighth Amendment imposes a duty on prison officials to provide humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Prison officials must take reasonable measures to guarantee the safety of the inmates and ensure that they receive adequate food, clothing, shelter, and medical care. Id. A “display [of] deliberate indifference to serious medical needs of prisoners” constitutes a breach of this duty. Johnson, 444 F.3d at 584. Thus, a claim that a prison official has violated the Eighth Amendment must demonstrate two elements: (1) an" }, { "docid": "8388707", "title": "", "text": "and Gluch harassed him and discriminated against him on the basis of his religion and ethnic background. Although the Fifth Amendment does not include an Equal Protection clause like the Fourteenth Amendment, it does prohibit discrimination that is so unjustifiable as to be violative of due process. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975) (internal quotations marks and citations omitted). Here, plaintiffs claims must fail. Verbal harassment by correctional officers does not amount to a constitutional deprivation. Alnutt v. Cleary, 913 F.Supp. 160, 165 (W.D.N.Y.1996). Also, plaintiff fails to allege any facts in his verified complaint supporting his claim of discriminatory conduct. Mere conclusory statements will not suffice on a motion for summary judgment. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987). 5. Cruel and Unusual Punishment Plaintiff alleges violations of his Eighth Amendment rights against cruel and unusual punishment by defendants’ alleged failure to provide him with adequate medical care, personal safety, and heat and cold water while in SHU. The Eighth Amendment prohibits the infliction of cruel and unusual punishments on those convicted of crimes, including those punishments that involve the unnecessary and wanton infliction of pain. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). It imposes duties on prison officials to provide humane conditions of confinement by ensuring inmates receive adequate food, clothing, shelter and medical care, and to take reasonable measures to guarantee inmates’ safety. Farmer v. Brennan, 511 U.S. 825, —, 114 S.Ct. 1970, 1975, 128 L.Ed.2d 811 (1994). To establish an Eighth Amendment claim based on prison conditions, a prisoner must demonstrate that the prison officials acted with “deliberate indifference.” This standard has both objective and subjective components. Objectively, the deprivation must be sufficiently serious to deny the prisoner the minimal civilized measures of life’s activities. Subjectively, the prison officials must have acted with a sufficiently culpable state of mind by knowing of and disregarding an excessive risk to inmate health or safety. Under the subjective" }, { "docid": "22647645", "title": "", "text": "for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise .... Id; see also Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (“There is, of course, a de minimis level of imposition with which the Constitution is not concerned.”). Furthermore, cold food apparently is an ordinary incident in prison life. See, e.g., Dean v. Campbell, No. 97-5955, 1998 WL 466137, at *2 (6th Cir. July 30, 1998) (per curiam) (holding that allegation of cold meals for a short period of time “failfed] to allege facts showing that [prisoner] was subjected to the type of extreme deprivations which are necessary for an Eighth Amendment conditions of confinement claim”); Johnson v. Horn, 150 F.3d 276, 282 (3d Cir.1998) (holding that serving cold instead of hot kosher food to inmate did not violate prisoner’s First Amendment rights); Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir.1992) (holding that prisoner’s constitutional rights were not violated when he was served cold food); Madyun v. Thompson, 657 F.2d 868, 874-75 (7th Cir.1981) (holding that allegation that food served to segregated prisoners was cold and not on menu served to general prison population was insufficient to state an Eighth Amendment claim); McCrary v. Delo, No. 93-3800, 1994 WL 706548 (8th Cir. Dec. 21, 1994) (per curiam) (holding that serving cold food to prisoner for three days was not cruel and unusual punishment); Prophete v. Gilless, 869 F.Supp. 537, 538 (W.D.Tenn. Nov.15, 1994) (holding that cold food does not pose danger to inmate health and thus does not constitute deprivation of necessity of life); Smith v. Copeland, 892 F.Supp. 1218, 1229 (E.D.Mo.1995) (holding that diet of only cold food, in and of itself, does not offend the Constitution), aff'd, 87 F.3d 265 (8th Cir.1996); Dillard v. DeTella, No. 95-5575, 1998 WL 111704 (N.D.Ill. March 12, 1998) (dismissing prisoner’s claim in its entirety, including claim that he was served cold food and no utensils); Cruz v. Jackson, No. 94 Civ. 2600,1997 WL 45348 (S.D.N.Y. Feb. 5, 1997) (holding that" }, { "docid": "22129871", "title": "", "text": "rejection]” of those meals. Although Cooper agrees that prison regulations required him to dress for meals, he asserts that the regulations do not specify what consequences would follow from his failure to comply. He asserts that the jail guards made an “on the spot disciplinary decision” by refusing to feed him. Despite this disagreement concerning the interpretation of the regulation at issue, no copy of this regulation appears in the record. Dismissal was, therefore, premature because the present record is inadequate to support the district court’s implicit conclusion that the defendants acted within the regulation’s authority. Even if the regulation required the defendants to respond as they did, a dismissal of Cooper’s complaint does not necessarily follow. The mere existence of such a regulation is not an automatic shield against a civil rights suit. See, e.g., Gates v. Collier, 501 F.2d 1291, 1304-06 (5th Cir.1974) (permitting use of prison’s “dark hole” only if conditions exceeding state's statutory requirements are met). Complaints against the enforcement of prison regulations which deny a prisoner some privilege may, in the proper circumstances, be dismissed as frivolous. See, e.g., Felix v. Rolan, 833 F.2d 517, 518-19 (5th Cir.1987) (state can reasonably deny privileges such as access to prison law library because prisoner refuses to use his “committed name” as an alias for prison identification purposes). Whether, however, a prisoner’s meals constitute a like “privilege” is questionable. Also, the magistrate judge erred when, citing Beck v. Lynaugh, 842 F.2d 759, 761 (5th Cir.1988), he held that because there was “no evidence this harm [Cooper’s lack of food] was caused maliciously or deliberately by responsible people,” Cooper had failed to state a sufficient claim. The court in Beck, on the contrary, specifically rejected the “caused maliciously or deliberately” standard. It reiterated that the traditional eighth amendment standard — whether the infliction of pain was “unnecessary and wanton” — applied. Id. (citing Foulds v. Corley, 833 F.2d 52, 54-55 (5th Cir.1987)). Because depriving a prisoner of adequate food is a form of corporal punishment, the eighth amendment imposes limits on prison officials’ power to so deprive a prisoner." }, { "docid": "22647647", "title": "", "text": "prisoner’s allegation that he was served cold food for four months was insufficient to give rise to claim under Eighth Ainendment); Ivy v. Washington, No. 96 C 3012, 1996 WL 685455 (N.D.Ill. Nov. 25, 1996) (holding that claim of being served cold food does not state a violation of the Eighth Amendment); Williams v. Washington, No. 95 C 5126, 1996 WL 137670 (N.D.Ill. March 25, 1996) (holding that receiving meals delivered cold did not exceed deprivations one could expect from prison life); Vinegar v. Fairman, No. 95 C 844, 1995 WL 769758 (N.D.Ill. Dec. 29, 1995) (rejecting claim that being served cold food violated the Eighth Amendment; noting that the Constitution requires only that inmates receive adequate nutrition); Fisher v. Department of Correction, No. 92 Civ. 6037(LAP), 1995 WL 608379 (S.D.N.Y. Oct.16, 1995) (hold ing that prisoner’s claim that his food was sometimes cold did not rise to the level of a constitutional violation); Flournoy v. Sheahan, No. 93 C 1983, 1994 WL 605584 (N.D.Ill. Nov. 2, 1994) (holding that being served cold food is not a constitutional violation); Watson v. Sheahan, No. 93 C 1871, 1994 WL 95782 (N.D.Ill. March 18, 1994) (ruling that prisoner “has failed to explain how the alleged conditions of eating cold food without certain utensils while standing up or sitting on the floor present an immediate danger to his health”); cf. Cunningham v. Jones, 567 F.2d 653, 659-660 (6th Cir.1977) (observing that complaints about the preparation or quality of prison food “would generally be far removed from Eighth Amendment concerns”). As the majority stresses, “context matters.” Plaintiffs here are not average citizens, but convicted criminals, and therefore “cannot expect the amenities, conveniences and services of a good hotel.” Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir.1988). As the majority holds, this is an “objective inquiry” which we can, and should, be decided as a matter of law without further resort to the district court. I would therefore affirm the district court’s dismissal of Bell’s retaliation claim against defendant Kara-zim. For these reasons I dissent from III.B.2. III. I also disagree with the majority’s" }, { "docid": "4120248", "title": "", "text": "to say that these conditions, by themselves, would necessarily be sufficient to state Eighth Amendment claims. For instance, it is doubtful whether plaintiffs have pleaded facts establishing that the denial of medication for a limited time period constituted the denial of medical treatment despite a known “excessive risk to an inmate’s health and safety,” required to state an Eighth Amendment claim for the denial of medical care, and they do not show the requisite substantial harm. Arnold v. Moore, 980 F.Supp. 28, 34 (D.D.C. 1997). See also Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (no Eighth Amendment claim stated where, prison officials, inter alia, inadvertently failed to fill prisoner’s prescription for blood pressure medication for four days); Glover v. Ridley, 1994 WL 35849, 1994 U.S. Dist. LEXIS 1031, 93-cv-492 (SSH) (D.D.C.1994) at *5 (failure to provide the drug AZT on one occasion “clearly fail[s] to meet the deliberate indifference standard”); Cox v. District of Columbia, 834 F.Supp. 439 (D.D.C.1992) (two-week delay in providing medication to prisoner insufficient to state Eighth Amendment claim);. Bryan v. Administrative of F.C.I. Otisville, 897 F.Supp. 134 (S.D.N.Y.1995) (objective prong not met where prisoner was deprived of medicine for three days, causing fever and mouth infection); Shopley v. Nevada, 766 F.2d 404, 407 (9th Cir.1985) (per curiam) (a “delay in medical treatment must have caused substantial harm” to constitute Eighth Amendment violation). Likewise, the denial of food during a bus ride lasting some ten to fifteen hours is insufficiently serious to state a stand-alone claim, especially since plaintiffs have failed to identify any serious harm suffered as a result. See, e.g., Caldwell v. Caesar, 150 F.Supp.2d 50, 65 (D.D.C.2001) (to state Eighth Amendment claim for deprivation of adequate diet, prisoner must allege that deprivation was “so lacking in nutrition on sufficient occasions as to deprive him of adequate food necessary to maintain his health”); Gardner v. Beale, 780 F.Supp. 1073 (E.D.Va. 1991) (no Eighth Amendment claim stated where prisoner was fed two meals a day for multiple days, with 18-hour gap between meals, but received adequate nutrition and suffered only" }, { "docid": "16860206", "title": "", "text": "Warden Stansberry knew of and disregarded Plaintiffs need for a special diet. The court based its conclusion on Plaintiffs log of interactions with prison officials, which revealed that Plaintiff was “mainly focused on pursuing a collateral attack on his criminal conviction and on defending against his disciplinary charge, rather than on informing Stansberry of the conditions” he considered unconstitutional. J.A. 964. The court went on to note that even if there were a genuine dispute of material fact on this subjective prong, Plaintiffs acknowledgement that he otherwise received adequate medical treatment for his diabetes while confined in the Special Housing Unit rendered a finding of deliberate indifference untenable. 2. We affirm the district court’s award of summary judgment' in favor of Warden Stansberry on this claim, but for a different reason. Viewing the record in the light most favorable to Plaintiff, we conclude that Plaintiff failed to raise a genuine dispute of material fact regarding whether, in this case, the lack of a diabetic diet was a sufficiently serious deprivation to be actionable under the Eighth Amendment. Warden Stansberry conceded in her deposition and in her letter to Plaintiffs congressman that there was no diabetic diet provided to inmates in the Special Housing Unit. Even so, Warden Stansber-ry stated on at least two occasions that all inmates were educated about how to select from the available, meals foods appropriate for their medical conditions. In Farmer, the Supreme Court stated that the Eighth Amendment imposes a duty on prison officials to provide inmates with “adequate food.” Farmer, 511 U.S. at 832, 114 S.Ct. 1970. Several of our Sister Circuits have reasoned, albeit in unpublished decisions, that this duty includes an obligation to provide a medically appropriate diet when necessary. For instance, the Tenth Circuit has stated that the Eighth Amendment “requires officials to provide inmates with a special diet if such an accommodation is medically necessary.” Frazier v. Dep’t of Corr., 125 F.3d 861, at *1 (10th Cir.1997) (citing Byrd v. Wilson, 701 F.2d 592, 595 (6th Cir. 1983)). Similarly, the Seventh Circuit has noted that the Amendment “assures prisoners a" }, { "docid": "16860209", "title": "", "text": "part on the lack of “evidence that [he] could not maintain his health based on the diet provided and [the fact that he] d[id] not contend that he was unable to eat any of the food provided by the jail.” Miller, 198 F.3d 246, at *2. Likewise, courts have found that inmates who are denied special diets suffer no constitutional harm so long as they are instead given instruction on how to eat the available meals in a way that satisfies their medical needs. For example, the Tenth Circuit has found that an inmate who was served a universal, cafeteria-style diet but could use “nutritional break down cards” to determine what foods were amenable to his medical condition could not claim deliberate indifference based on the lack of a special diet. Moore v. Perrill, 51 F.3d 286, at *1 (10th Cir.1995); see also Williams v. Hartz, 43 Fed.Appx. 964, 966 (7th Cir. 2002) (affirming the district court’s award of summary judgment when the complaining prisoner was not given a special diet, but was “instructed” on medically appropriate food choices and given “snacks” when necessary to raise his blood sugar). And a California district court held that a prisoner who received the “Heart Healthy” diet provided to all inmates in the state prison system and failed to present evidence that he could not eat certain menu items or that the “overall percentage” of such items in each meal was significant could not survive summary judgment on his deliberate indifference claim. Baird v. Alameida, 407 F.Supp.2d 1134, 1140-41 (C.D. Cal. 2005). We find these decisions persuasive. Only an “extreme deprivation” is actionable under the Eighth Amendment. According to Plaintiff, the meals in the Special Housing Unit included “a bread, a meat product!,] a vegetable!,] and a sweet dessert.” J.A. 279. Plaintiff has not offered evidence that there was no combination of foods in each meal that would have provided him with adequate sustenance without causing adverse medical consequences, instead asserting only that the meals were high in sugar and accompanied by a sugary drink. Plaintiff also does not contradict prison officials’ claims" }, { "docid": "11713200", "title": "", "text": "process right to have his version of the facts considered in the event he is lawfully excluded. See Anderson, supra, 107 S.Ct. at 3039 (the “contours of the right” must be “sufficiently clear that a reasonable official would understand that what he is doing violates the right”). For these reasons, the Court finds that defendant, in his personal capacity, should be granted summary judgment for reasons of qualified immunity. Cruel and Unusual Punishment Magistrate Buchwald concluded that although certain issues of fact were both genuine and material, defendant should be granted summary judgment on the basis of qualified immunity. The Magistrate determined that defendant acted in accordance with state policy and reasonably believed that his actions were consistent with existing law and constitutional principles. Defendant objects that the presence of a factual issue concerning the nutritional value of the restricted diet imposed on him entitles him to a jury trial. The Court disagrees. The Eighth Amendment prohibition against cruel and unusual punishment mandates that prisoners, even those receiving restricted diets for punitive purposes, receive nutritionally adequate food that does not present an imminent danger to the health of the inmate consuming it. Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (citations omitted). While it is unfortunately true that the record does not establish that the diet plaintiff received was nutritionally adequate, defendant would be entitled to summary judgment even if the food were not nutritionally adequate. Nothing in the complaint or objections suggest that defendant, the hearing officer, acted unconstitutionally in imposing the restricted diet. See Cunningham v. Jones, 667 F.2d 565 (6th Cir.1982) (imposition of nutritionally adequate restrictive diet — one meal per day for fifteen days— does not violate Eighth Amendment). Plaintiff has not established or even created an inference that defendant knew plaintiff would receive a nutritionally inadequate diet. As the Magistrate concludes, defendant is entitled to qualified immunity under these circumstances since it was objectively reasonable to believe that imposing the restricted diet would not violate the Constitution. Accordingly, summary judgment in favor of defendant is granted. Food Contamination Plaintiff has repeatedly written to this" }, { "docid": "14495869", "title": "", "text": "refuse to eat the Common Fare meals. The plaintiff fails to meet his burden of demonstrating a genuine issue of material fact on his First Amendment claim. Accordingly, the defendants’ motion for summary judgment on this claim is being granted. C. RLUIPA Claims The plaintiff contends that the food preparation process violated his rights under RLUIPA. RLUIPA bars “the government from imposing a substantial burden on a prisoner’s free exercise unless the challenged conduct or regulation ‘further[s] a compelling government interest and [is] the least restrictive means of furthering that interest.’ ” Holland, 758 F.3d at 224 (quoting Redd v. Wright, 597 F.3d 532, 536 (2d Cir.2010)). Again, the plaintiff is required to demonstrate that there exists a genuine issue of material fact as to a substantial burden on his religious beliefs. As discussed above, he has not done so. Accordingly, defendants’ motion for summary judgment is being granted as to the RLUIPA claim. D. Eighth Amendment Claims The plaintiff also challenges the preparation of the Common Fare meals as violating his rights under the Eighth Amendment. To state an Eighth Amendment claim relating to conditions of confinement, the plaintiff must show that the alleged deprivation is sufficiently serious and that prison officials acted with deliberate indifference to his health and safety. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Eighth Amendment requires that prisoners be provided nutritionally adequate meals that are prepared and served under conditions that do not present an immediate danger to their health and well-being. See Jones v. Smith, No. 9:09-cv-1058(GLS/ATB), 2015 WL 5750136, at *2 (N.D.N.Y. Sept. 30, 2015) (citing Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983)). The defendants have presented evidence that the Common Fare meals are nutritionally adequate and that they are prepared under safe conditions. The plaintiff chooses not to eat the Common Fare meals. He has not been denied the meals by the defendants. While the plaintiffs allegations regarding preparation of the meals and compliance with Jewish dietary law are relevant to concerns under the First Amendment and RLUIPA, concerns that" }, { "docid": "22129872", "title": "", "text": "the proper circumstances, be dismissed as frivolous. See, e.g., Felix v. Rolan, 833 F.2d 517, 518-19 (5th Cir.1987) (state can reasonably deny privileges such as access to prison law library because prisoner refuses to use his “committed name” as an alias for prison identification purposes). Whether, however, a prisoner’s meals constitute a like “privilege” is questionable. Also, the magistrate judge erred when, citing Beck v. Lynaugh, 842 F.2d 759, 761 (5th Cir.1988), he held that because there was “no evidence this harm [Cooper’s lack of food] was caused maliciously or deliberately by responsible people,” Cooper had failed to state a sufficient claim. The court in Beck, on the contrary, specifically rejected the “caused maliciously or deliberately” standard. It reiterated that the traditional eighth amendment standard — whether the infliction of pain was “unnecessary and wanton” — applied. Id. (citing Foulds v. Corley, 833 F.2d 52, 54-55 (5th Cir.1987)). Because depriving a prisoner of adequate food is a form of corporal punishment, the eighth amendment imposes limits on prison officials’ power to so deprive a prisoner. See, e.g., Gates, 501 F.2d at 1301-03, 1306 (discussing cruel and unusual analysis and noting that deprivation of adequate food is a form of corporal punishment); Cunningham v. Jones, 567 F.2d 653, 656-57 (6th Cir.1977). A facially permissible form of punishment may, for example, through continual use inflict cruel and unusual punishment. See Dearman v. Woodson, 429 F.2d 1288, 1289 (10th Cir.1970) (allegation that prison officials refused to provide prisoner food for 50V2 hours states cause of action under 42 U.S.C. § 1983). Thus, Cooper’s assertion that he was continuously deprived of food presents a set of facts that may entitle him to relief. Cooper also claims that the defendants punished him by denying him food without due process. The level of process due a prisoner depends in part on the severity of the sanction to be imposed and the needs of the institution. See Hewitt v. Helms, 459 U.S. 460, 473-77, 103 S.Ct. 864, 872-74, 74 L.Ed.2d 675 (1983); Dzana v. Foti, 829 F.2d 558, 561 (5th Cir.1987). Even though the due process standards" }, { "docid": "12615253", "title": "", "text": "the type of extreme deprivations which are necessary for an Eighth Amendment conditions of confinement claims. In Johnson v. Horn, 150 F.3d 276, 282 (3d Cir.1998), the court held that serving cold food instead of kosher food to an inmate did not violate his First Amendment rights. In Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir.1992), the court held that a prisoner’s constitutional rights were not violated when he was served cold food. In Madyun v. Thompson, 657 F.2d 868, 874-75 (7th Cir.1981), the court held that an allegation that food served to segregated prisoners was cold and not on the menu served to general population prisoners was insufficient to state an Eighth Amendment claim. In Prophete v. Gilless, 869 F.Supp. 537, 538 (W.D.Tenn.1994), the court held that cold food does not pose a danger to inmate health and thus does not constitute a deprivation of a necessity of life. In Smith v. Copeland, 892 F.Supp. 1218, 1229 (E.D.Mo.1995), aff'd, 87 F.3d 265 (8th Cir.1996), the court held that a diet of cold food, in and of itself, does not offend the Constitution. In Cruz v. Jackson, 1997 WL 45348 (S.D.N.Y. Feb. 5, 1997), the court held that a prisoner’s allegation that he was served cold food for four months was insufficient to give rise to an Eighth Amendment claim. In Ivy v. Washington, 1996 WL 685455 (N.D.Ill. Nov. 25, 1996), the court held that a claim of being served cold food does not state an Eighth Amendment violation. In Williams v. Washington, 1996 WL 137670 (N.D.Ill. Mar. 25, 1996), the court held that receiving meals delivered cold did not exceed deprivations one could expect from prison life. In Vinegar v. Fairman, 1995 WL 769758 (N.D.Ill.Dec. 29, 1995), the court rejected a claim that being served cold food violated the Eighth Amendment, noting that the Constitution requires only that inmates receive adequate nutrition. In Fisher v. Dep’t of Corr., 1995 WL 608379 (S.D.N.Y. Oct. 16, 1995), the court held that a prisoner’s claim that his food was served cold did not rise to the level of a constitutional violation." }, { "docid": "22647646", "title": "", "text": "cold food); Madyun v. Thompson, 657 F.2d 868, 874-75 (7th Cir.1981) (holding that allegation that food served to segregated prisoners was cold and not on menu served to general prison population was insufficient to state an Eighth Amendment claim); McCrary v. Delo, No. 93-3800, 1994 WL 706548 (8th Cir. Dec. 21, 1994) (per curiam) (holding that serving cold food to prisoner for three days was not cruel and unusual punishment); Prophete v. Gilless, 869 F.Supp. 537, 538 (W.D.Tenn. Nov.15, 1994) (holding that cold food does not pose danger to inmate health and thus does not constitute deprivation of necessity of life); Smith v. Copeland, 892 F.Supp. 1218, 1229 (E.D.Mo.1995) (holding that diet of only cold food, in and of itself, does not offend the Constitution), aff'd, 87 F.3d 265 (8th Cir.1996); Dillard v. DeTella, No. 95-5575, 1998 WL 111704 (N.D.Ill. March 12, 1998) (dismissing prisoner’s claim in its entirety, including claim that he was served cold food and no utensils); Cruz v. Jackson, No. 94 Civ. 2600,1997 WL 45348 (S.D.N.Y. Feb. 5, 1997) (holding that prisoner’s allegation that he was served cold food for four months was insufficient to give rise to claim under Eighth Ainendment); Ivy v. Washington, No. 96 C 3012, 1996 WL 685455 (N.D.Ill. Nov. 25, 1996) (holding that claim of being served cold food does not state a violation of the Eighth Amendment); Williams v. Washington, No. 95 C 5126, 1996 WL 137670 (N.D.Ill. March 25, 1996) (holding that receiving meals delivered cold did not exceed deprivations one could expect from prison life); Vinegar v. Fairman, No. 95 C 844, 1995 WL 769758 (N.D.Ill. Dec. 29, 1995) (rejecting claim that being served cold food violated the Eighth Amendment; noting that the Constitution requires only that inmates receive adequate nutrition); Fisher v. Department of Correction, No. 92 Civ. 6037(LAP), 1995 WL 608379 (S.D.N.Y. Oct.16, 1995) (hold ing that prisoner’s claim that his food was sometimes cold did not rise to the level of a constitutional violation); Flournoy v. Sheahan, No. 93 C 1983, 1994 WL 605584 (N.D.Ill. Nov. 2, 1994) (holding that being served cold food is" }, { "docid": "13541314", "title": "", "text": "relation to inmates placed in segregation that they “shall receive the same daily ration of food which is provided to the general prison population, and in no event shall such inmates receive less than 2000 calories per day.” 349 F.Supp. at 900. The Eighth Circuit remanded to the District Court an order determining that its continued exercise of jurisdiction over the Arkansas prison system was no longer necessary. The opinion of the Court of Appeals concerned itself with the restricted diet provided prisoners placed in solitary confinement. It held: In the punitive wing, we note the prisoners are denied the regular prison diet. “Grue” is the term applied to the tasteless, unappetizing paste-like food which is served to prisoners in solitary confinement as a form of further punishment. In Holt I [Holt v. Sarver, 300 F.Supp. 825 (E.D.Ark.1969)], the district court found that grue constituted a nutritionally sufficient diet. 300 F.Supp. at 832. The procedure followed by prison authorities when an inmate is placed on grue, however, makes that conclusion dubious. The prisoner receives one full meal at least every three days and six consecutive full meals every 14 days. At the end of that period, he is given a thorough physical examination. If medical reasons dictate a regular diet then it is ordered. Otherwise the prisoner is continued on this punitive treatment. This, in itself, indicates an awareness of possible dietary insufficiencies. There exists a fundamental difference between depriving a prisoner of privileges he may enjoy and depriving him of the basic necessities of human existence. We think this is the minimal line separating cruel and unusual punishment from conduct that is not. On remand, the district court’s decree should be amended to ensure that prisoners placed in punitive solitary confinement are not deprived of basic necessities including light, heat, ventilation, sanitation, clothing and a proper diet. Finney v. Arkansas Board of Correction, 505 F.2d 194, 207-08 (8th Cir. 1974) (footnote omitted). In a case involving review of many practices found to be violative of the Eighth Amendment in the Virginia Correctional System, Judge Merhige analyzed the reasons why" }, { "docid": "12615252", "title": "", "text": "As stated above, the objective element would require a showing that society considers the risk he faces “to be so grave that it violates contemporary standards of decency to expose anyone unwillingly” to it. In Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the Supreme Court more specifically defined the term “deliberate indifference” in the Eighth Amendment context to mean that the individual prison official was aware of the risk to the inmate’s health and was deliberately indifferent to it. While the Fourth Circuit has not addressed whether serving an inmate cold food can constitute a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment, other circuits have. For instance, in Blatter, the court noted that cold food is an ordinary incident in prison life. In Dean v. Campbell, 1998 WL 466137 at *2 (6th Cir. July 30, 1998), the Sixth Circuit held that an inmate’s allegation of cold meals for a short period of time failed to allege facts showing that the inmate was subjected to the type of extreme deprivations which are necessary for an Eighth Amendment conditions of confinement claims. In Johnson v. Horn, 150 F.3d 276, 282 (3d Cir.1998), the court held that serving cold food instead of kosher food to an inmate did not violate his First Amendment rights. In Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir.1992), the court held that a prisoner’s constitutional rights were not violated when he was served cold food. In Madyun v. Thompson, 657 F.2d 868, 874-75 (7th Cir.1981), the court held that an allegation that food served to segregated prisoners was cold and not on the menu served to general population prisoners was insufficient to state an Eighth Amendment claim. In Prophete v. Gilless, 869 F.Supp. 537, 538 (W.D.Tenn.1994), the court held that cold food does not pose a danger to inmate health and thus does not constitute a deprivation of a necessity of life. In Smith v. Copeland, 892 F.Supp. 1218, 1229 (E.D.Mo.1995), aff'd, 87 F.3d 265 (8th Cir.1996), the court held that a diet of cold food," } ]

[ { "docid": "8966656", "title": "", "text": "importation of marijuana and possession of marijuana with intent to distribute, violations of 21 U.S.C. §§ 952(a), 960(a)(1), and 841(a)(1). From a jury verdict convicting him for both offenses, he takes this appeal. Rule 15(a) Federal Rule of Criminal Procedure 15(a) provides in pertinent part: Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition ... The district court retains broad discretion in granting a Rule 15(a) motion, and considers the particular characteristics of each case to determine whether the “exceptional circumstances” requirement has been satisfied. United States v. Bello, 532 F.2d 422, 423 (5th Cir.1976). On the morning of trial, Farfan filed a motion pursuant to the rule to take the deposition of Pilingas. Although the motion was unaccompanied by a supporting affidavit, defense counsel declared in open court when questioned by the judge that Pilingas was a resident of Mexico, and thus beyond the subpoena power of the court. Counsel also indicated that Pilingas had refused to re-enter the United States voluntarily, since the Justice Department had threatened him with arrest. Finally, defense counsel speculated that although Pi-lingas would avoid inculpating himself, he would probably testify that Farfan had no knowledge of the marijuana concealed in the truck. The government filed its objections, complaining that Farfan had neglected to file a supporting affidavit. The district court later denied the motion, finding that Farfan had failed to submit a sworn affidavit demonstrating “exceptional circumstances.” We conclude the district court abused its discretion in denying the Rule 15(a) motion. We find no requirement in the language of Rule 15 that the motion must be supported by an affidavit, nor do the cases we have reviewed indicate that our court has imposed such a rigid requirement. In this case, any affidavit filed by Farfan would have contained the same representations by counsel that were made" } ]

[ { "docid": "7255805", "title": "", "text": "nature, not on Owens’ mental state. However, on appeal, Owens refocuses his argument on the mental state prohibition now embodied in Section (b) of Rule 704 and contends that Miaso improperly-testified regarding Owens’ intent to defraud. Although we question whether defense counsel’s objection was specific enough to inform the trial judge that Owens was objecting to the evidence on Rule 704(b) grounds, we will nevertheless address Owens’ contention on the merits. At trial, Miaso testified that the relevant appraisal reports were defective in that they did not follow certain standards set forth by public and private regulatory bodies, and Owens has no qualms with this testimony. However, at the end of each description of a certain appraisal report, Miaso added that in his opinion, the appraisal report was “misleading and fraudulent.” Owens contends that the final comments — that the appraisal reports were “misleading and fraudulent”' — violated Rule 704(b). However, as we noted above, Rule 704(b) addresses the defendant’s mental state, and Miaso did not comment in any way about Owens’ mental state. In United States v. Aggarwal, 17 F.3d 737, 743 (5th Cir.1994), the defendant was convicted of wire fraud and appealed, contending that the government’s expert witness violated Rule 704(b) by using terms such as “scam,” “fraudulent,” and “fraud” to describe the loans at issue. According to the defendant, those terms implied that the defendant had the required intent to commit fraud. See id. In response, the government noted, inter alia, that the expert “never commented directly on [the defendant’s] state of mind,” thus Rule 704(b) was not violated, and the Fifth Circuit affirmed. Id. In the present case, as in Aggarwal, Miaso only used the phrase “misleading and fraudulent” to describe the quality of the appraisal reports, and thus never commented directly on Owen’s state of mind. Therefore, this testimony was properly admitted. See Aggarwal, 17 F.3d at 743; 29 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE & PROCEDURE § 6285, at 395 (1997) (“Rule 704(b) usually bars only a direct statement that defendant did or did not have the required mental state.”). Owens" }, { "docid": "15508017", "title": "", "text": "admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. But even though Rule 704 generally authorizes the admission of opinion testimony on an ultimate issue, the Rule makes clear that the proffered testimony must also be \"otherwise admissible.” As the Advisory Committee Notes to Rule 704 explain: The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. Thus, a proffered opinion must satisfy the criteria set forth in, inter alia, Rule 701 before the court permits a jury to hear it. . See also Fed.R.Evid. 103(a) (providing that an evidentiary ruling may not be reversible error \"unless a substantial right of a party is affected”); Fed.R.Civ.P. 61 (\"No error ... is ground for granting a new trial or for setting aside a verdict ... unless refusal to take such action appears to the court inconsistent with substantial justice”); 28 U.S.C. § 2111 (appellate court should give judgment \"without regard to errors or defects which do not affect the substantial rights of parties”). . Cf. Doty v. Sewall, 908 F.2d 1053, 1057 (1st Cir.1990) (\"When evidence is charged to have been improperly admitted, any error is more likely to be found harmful, and thus reversible, if the evidence is substantively important, inflammatory, repeated, emphasized, or unfairly self-serving.” (internal quotation marks omitted)). . We note" }, { "docid": "7255803", "title": "", "text": "objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. In other words, Rule 704 allows testimony regarding an ultimate issue except when that ultimate issue concerns the defendant’s mental state or condition and that issue constitutes an element or defense of the crime charged. On appeal, Owens contends that Miaso’s testimony violated Rule 704(b), and the government first responds by asserting that defense counsel failed to preserve the error for review by objecting to the testimony at trial on Rule 704(b) grounds. Immediately prior to expert witness Mi-aso taking the witness stand, Owens objected to any testimony by Miaso that Owens’ appraisal reports were fraudulent: Defense Counsel: I forgot to make this objection earlier.... His reports say that the appraisals done by Mr. Owens were fraudulent. I do not think that as an expert he ought to be allowed to testify that he thinks they’re fraudulent. He ought to be able to testify to all the inadequacies, all the ways they violate the uniform standards.... But to say that they are fraudulent to the jury as an expert invades the province of the jury to decide whether his intent was to defraud, because that is what he is charged with, mail fraud and wire fraud. Government Counsel: That’s what he’s going to testify to. His opinion that these [appraisals] were fraudulent and misleading, and he’s going to say why. The Court: He can do it. It’s the old ultimate issue deal. Defense Counsel: Right Thus, at trial, Owens’ objection was based “on the old ultimate issue” objection, which Rule 704 abolished, see, e.g., United States v. Bashes, 649 F.2d 471, 479 (7th Cir.1980), and focused on the reports ’ fraudulent" }, { "docid": "15508016", "title": "", "text": "and about which she learned by telephone and in-person interviews with the Hirsts back in the United States. (App.168.) The excluded question above is nearly identical, in structure, to the question challenged on appeal. (See App. 432 (\"Q: Based on your knowledge of the facts of this case, could Ranger American, within the limited scope of its functions, have been able to prevent the attack against Ms. Hirst?”).) As will be explained above, the reasons the District Court articulated in refusing to permit Dr. Burgess’s testimony are among the very same reasons the District Court should have sustained counsel’s objection to the testimony now challenged on appeal. . Here, the objection to Bravo's testimony as being without foundation or speculative rings true. . The fact that Bravo’s lay opinion testimony touched on an ultimate issue in the case is not, itself, problematic. Rule 704, which governs “Opinion on Ultimate Issue,” clearly states that ultimate issue testimony is permissible: (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. But even though Rule 704 generally authorizes the admission of opinion testimony on an ultimate issue, the Rule makes clear that the proffered testimony must also be \"otherwise admissible.” As the Advisory Committee Notes to Rule 704 explain: The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would" }, { "docid": "2463241", "title": "", "text": "The government objected to the admission of this testimony, and the district court sustained the objection on the ground that under Federal Rule of Evidence 704, a party “cannot offer an expert opinion on one of the ultimate issues of fact, one of the ultimate issues in the case.” As authority for this proposition, the district court cited Matthews v. Ashland Chem., Inc., 770 F.2d 1303 (5th Cir.1985), and Owen v. Kerr-McGee Cory., 698 F.2d 236 (5th Cir.1983). Lueben argues that under Federal Rule of Evidence 704, Becezny should have been allowed to testify, and that it constituted error for the district court to exclude his testimony. The testimony that Becezny was going to offer went to the issue of the materiality of the false statements. The district court and the parties have assumed that materiality is a fact question for the jury with respect to the section 1014 counts, but constitutes a question of law on the section 1001 counts. Without deciding this issue, we assume for the purposes of this appeal that this is a correct statement of the law. We will therefore analyze separately the effect of the district court’s exclusion of the expert testimony on the section 1014 counts and on the 1001 counts. With respect to the section 1014 counts, where the element of materiality presents a question for the jury, we hold that the district court misinterpreted our cases construing Federal Rule of Evidence 704, and that it was error for the district court to exclude the proffered evidence on the element of materiality from the jury. Federal Rule of Evidence 704 provides in full: Rule 704. Opinion on Ultimate Issue (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental" }, { "docid": "15380206", "title": "", "text": "more than unsubstantiated speculation and, standing alone, fails to meet even defendant’s initial burden of persuading the court that the evidence should be suppressed. See United States v. Evans, 572 F.2d 455, 486 (5th Cir.1978). D. Motions for Mistrial Defendant Henry Manns appeals the district court’s denial of his motion for mistrial, made after a police detective used the term “conspiracy” during testimony at trial. Manns contends that, although the witness testified as an expert about drug dealing activities, his use of the term “conspiracy” amounted to a conclusion as to the ultimate issue, usurping the jury’s proper role. Rule 704 of the Federal Rules of Evidence provides that an expert’s “testimony in the form of an opinion or inference otherwise admissable is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704. The police detective’s use of the term “conspiracy” on several occasions — always in response to questions during cross-examination by the defense — was not objected to or otherwise challenged at the time. As a result, the judge’s decision not to grant the motion for mistrial is subject to our deferential, “plain error” standard of review. See United States v. Nabors, 707 F.2d 1294, 1298 (11th Cir.1983). Considered in context, the police detective’s use of the term “conspiracy” was a factual — not a legal — conclusion and did not track unduly the definition of the offense in 21 U.S.C. § 846. As a result, United States v. Scop, 846 F.2d 135 (2d Cir.1988), relied upon by defendant, is distinguishable. In the light of Rule 704 and the factual nature of the witness’ conclusion, the district judge’s denial of the motion for mistrial was not plain error. Defendant Jimmy Lee Nixon argues that his trial was rendered fundamentally unfair by remarks made during the prosecutor’s closing argument. Nixon specifically objects to the following sentences uttered by the prosecutor: “Jimmy Lee Nixon is one of Henry Manns’ customers. He has his own operation in Georgia, but he is supplied by Henry Manns.” The prosecutor’s statements were well within the government’s" }, { "docid": "17279369", "title": "", "text": "consider individual factors in the final imposition of the sentence. We conclude that the mandatory minimum penalty provisions of Title 21 U.S.C. Section 841(b)(1)(A) do not violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and, accordingly, we find that appellants’ constitutional rights to equal protection of the laws have not been violated. AFFIRMED. . Federal Rules of Evidence Rule 704 provides that: \"(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.” . Federal Rules of Criminal Procedure Rule 52 provides that: \"(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. (b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” . Specifically, Title 21 U.S.C. Section 841(b)(1)(A) provides, in relevant part, that: \"... If any person commits such a violation after one or more prior convictions for an offense punishable under this paragraph, or for a felony under any other provision of this subchapter or subchapter 11 of this chapter or other law of a State, the United States, or a foreign country relating to narcotic drugs, marijuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment.” . Title 21 U.S.C. Section 851(e) provides that: \"No person who stands convicted of an offense under this part may challenge the validity of any prior conviction under this section which" }, { "docid": "12736054", "title": "", "text": "someone with a normal personality pattern from distorting the truth. A witness, from a psychiatric viewpoint, must observe clearly, remember fully, and be able to testify without suppressing or distorting the truth. In this in stance, Mr. Cresswell’s personality disorder precludes him from providing truthful testimony, in all medical probability, given the circumstances at hand. . United States v. Mest, 789 F.2d 1069 (4th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 163, 93 L.Ed.2d 102, is somewhat in point. There we were construing the amendment to Rule 704, Fed.R.Evid. and whether that amendment was to be applied retroactively. The amendment provides: (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. We held the amendment was to be given retroactive effect. It is true the amendment applies specifically to “defendant” but the rationale of the amendment is equally applicable to one who is a \"witness” such as Creswell. See United States v. Frisbee, 623 F.Supp. 1217, 1224 (N.D.Cal.1985). . In his Reply Brief, counsel for Cecil states that he had told the district judge that Dr. Kuvin was available at any time to testify. He, however, was not available at that time and, so far as the record shows, at no subsequent time. The seeming inference that the failure to call Dr. Kuvin was that of the district court itself overlooks the fact that the calling of witnesses is the responsibility of the party who has subpoenaed the witness, and not the responsibility of the trial court. . Section 1863(b)(2) authorizes the use of either \"the voter registration lists or" }, { "docid": "5143760", "title": "", "text": "those [hypothetical individuals] who clearly do possess the requisite intent, leaving unstated the inference that the defendant, having been caught engaging in more or less the same practices, also possessed the requisite intent.” Lipscomb, 14 F.3d at 1239. The jury is then left to decide whether to make the logical connection from the expert’s testimony to the case at hand. In offering expert testimony as circumstantial evidence of a defendant’s intent, however, courts must be wary that the expert witness not cross into the jury’s realm or otherwise risk prejudicing the jury. See Fed.R.Evid. 704(b), 403. Morris contends Welsh’s testimony did both. Rule 704 governs opinions that witnesses offer on so-called “ultimate issues.” The rule is divided into two parts, a general rule and an exception. The general rule states that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704(a). The exception provides as follows: No expert witness testifying with respect to the mental state or condition of a defendant in a criminal ease may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. Id. 704(b). Under the rule, the potential problem arises when experts stray from their analysis of detached facts and offer opinions regarding the defendant’s actual mental state; such conclusions are meant to be the exclusive province of the jury. It must be clear from the expert’s testimony that he “was merely identifying an inference that might be drawn from the circumstances surrounding the defendant’s arrest, and was not purporting to express an opinion as to the defendant’s actual mental state.” Lipscomb, 14 F.3d at 1240 (quotations omitted). Rule 403, meanwhile, permits a court to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.” Testimony runs the risk of being overly prejudicial when, as here, the" }, { "docid": "15383214", "title": "", "text": "He also provided the jury with an extensive glossary of professional gambling terminology. He did not attempt to offer opinions on the credibility of witnesses who appeared at trial. The admission of Holmes’ testimony is governed by Rules 702 and 704 of the Federal Rules of Evidence. Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Rule 704 provides, in pertinent part: (a) Except as provided in subdivision (b) [mental state or condition], testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Holmes testified that he was a supervisory special agent assigned to the Gambling Unit of the FBI Laboratory in Washington, D.C. During his nineteen years with the FBI, he has been qualified as an expert witness in gambling cases on more than 200 occasions. His responsibilities include the detection, interpretation and identification of gambling records and gambling paraphernalia. He holds a Bachelor’s Degree in Economics and a Master’s Degree in Forensic Science, and regularly serves as an instructor to local law enforcement officers in the area of gambling. After a brief recitation of his qualifications at trial, counsel for appellant Aaron Mosko stipulated to Holmes’ expertise. [Supp. Vol. Aug. 12, 1987 at 5-10]. Much of Holmes’ testimony was admitted without objection. The only pertinent objections occurred when Holmes began to provide his opinions on the roles played by the various defendants in the gambling operation. [Vol. 15, pp. 9-6, -67, -74, -82], Given the complexity of the case, the volume of tape recordings and documentary exhibits, as well as the average person’s unfamiliarity with the professional gambling business, it was well within the discretion of the trial judge to permit such testimony on the theory that Holmes’ specialized knowledge would assist the trier-of-fact in understanding the evidence." }, { "docid": "21569342", "title": "", "text": "count one, 240 months imprisonment on count three running concurrently with the sentence on count one, and 60 months imprisonment on count two running consecutively to the sentence on count one, resulting in a total imprisonment period of 355 months. II. Analysis Lipscomb contends that the district court erred in permitting the officers to give their expert opinions on whether the cocaine they found on him was for distribution rather than for his personal use. Such opinions, Lipscomb contends, go to the “ultimate issue” of whether he intended to distribute the cocaine, an element of the charge against him, and therefore should have been excluded under Rule 704(b), which provides: No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. Fed.R.Evid. 704(b). As discussed further below, this rule is written as an exception to Rule 704(a), which provides: Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Fed.R.Evid. 704(a). Decisions applying Rule 704(b) to the expert testimony of law enforcement officials have found it significant whether the expert actually referred to the intent of the defendant or, instead, simply described in general terms the common practices of those who clearly do possess the requisite intent, leaving unstated the inference that the defendant, having been caught engaging in more or less the same practices, also possessed the requisite intent. Thus, in United States v. Foster, 939 F.2d 445, 454 (7th Cir.1991), the court held that Rule 704(b) did not preclude a detective from testifying “that, as a general rule, drug couriers” use cash, aliases, beepers, one-way tickets, “masking agents such as talcum powder,” and hard-sided suitcases, all of which the defendant had used" }, { "docid": "17279368", "title": "", "text": "classify the persons it affects in a manner rationally related to legitimate governmental objectives. Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080-81, 67 L.Ed.2d 186 (1981). Thus, Title 21 U.S.C. Section 841(b)(1)(A) would only violate appellants’ rights to equal protection of the laws if it did not bear any rational relationship to a legitimate governmental interest. See Roberts v. Spalding, 783 F.2d 867, 872 (9th Cir.1986); Dan-dridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970). We find the contrary to be true. In fact, it is apparent that the mandatory minimum sentencing provisions in Title 21 U.S.C. Section 841(b)(1)(A) are rationally related to the strong governmental interest in the deterrence of drug abuse and drug trafficking. We are unable to state more clearly the government’s interest in imposing a mandatory minimum sentence for violation of drug laws. Indeed, we find it unnecessary to elaborate on the legitimacy of such a governmental interest. The statute, furthermore, still affords the courts sufficient discretion during the sentencing phase to consider individual factors in the final imposition of the sentence. We conclude that the mandatory minimum penalty provisions of Title 21 U.S.C. Section 841(b)(1)(A) do not violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and, accordingly, we find that appellants’ constitutional rights to equal protection of the laws have not been violated. AFFIRMED. . Federal Rules of Evidence Rule 704 provides that: \"(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.” . Federal Rules of Criminal Procedure Rule 52" }, { "docid": "16981663", "title": "", "text": "medical records showed that she had been admitted to Georgia Regional Hospital on November 8, 1982, one week after the date of the crime alleged in count one of the indictment. She was allowed a trial visit home on November 19, and she was finally discharged on December 29, 1982. The crime alleged in count two of the indictment took place on or about January 1, 1983, three days later. By January 20, Alexander’s condition had deteriorated so badly she was rehospitalized. Due to the court’s ruling that applied Rule 704(b) in her trial, Alexander was not permitted to ask Dr. Davis whether he thought she was legally insane at the time of the commission of her crimes. The jury convicted Alexander on both counts and she was sentenced to a year and a day on each count. Execution of the sentence for one count was suspended by the court and she was placed on five years probation with the special condition that she receive psychiatric treatment. II. THE EX POST FA CTO ISSUE The Comprehensive Crime Control Act of 1984, effective October 12, 1984, made several changes affecting the defense of insanity. The primary substantive change, contained in 18 U.S.C. § 20, altered the test for insanity and shifted the burden of proof on the issue to the defendant. In addition, the Act also amended Rule 704 of the Federal Rules of Evidence. Prior to the passage of the Act, former Rule 704 provided: Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. As amended, Rule 704 provides: (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the" }, { "docid": "15383213", "title": "", "text": "While the trial court did not poll the jury concerning the prejudicial effect of the incident, no poll was requested by any appellant prior to the return of the verdict. The conscientiousness displayed by the jury and the cautionary instruction given by the trial court convince us that the matter was properly handled, and the alleged error, if any, in failing to poll the jury was harmless. See United States v. Treadwell, 760 F.2d 327, 340-41 (D.C.Cir.1985). IV. EXPERT GAMBLING TESTIMONY Two appellants, Aaron Mosko and Robert Sheehan, challenge the trial court’s admission of expert testimony rendered by FBI Agent Holmes. We review this evidentiary ruling under an abuse of discretion standard. United States v. Buchanan, 787 F.2d 477, 483 (10th Cir.1986); United States v. Fleishman, 684 F.2d 1329, 1335 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). Holmes, after reviewing the intercepted telephone conversations and seized documentation, testified as an expert witness as to his opinion of the roles of each of the participants in the gambling operation. He also provided the jury with an extensive glossary of professional gambling terminology. He did not attempt to offer opinions on the credibility of witnesses who appeared at trial. The admission of Holmes’ testimony is governed by Rules 702 and 704 of the Federal Rules of Evidence. Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Rule 704 provides, in pertinent part: (a) Except as provided in subdivision (b) [mental state or condition], testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Holmes testified that he was a supervisory special agent assigned to the Gambling Unit of the FBI Laboratory in Washington, D.C. During his nineteen years with the FBI, he has been qualified" }, { "docid": "12008521", "title": "", "text": "was to make it possible to call witnesses, because their financial condition was such that they could not make the necessary deposit against the subpoena cost. At oral hearing on this appeal, government counsel stated that the reason given to the trial judge was not a witness problem, but to obtain money for hotel accommodations. In any event, there is nothing in the record which supports appellants’ argument. In view of the foregoing, we conclude that there was no error in the denial of motions for a new trial. The judgment is affirmed. . 18 U.S.C. § 1343 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, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both. 18 U.S.C. § 371 provides, in part: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. . The appeal of Graves from his conviction on the same conspiracy count as that of Buckelew, Jenkins, and Scallion has been dismissed without prejudice on motion of appellee alleging that Graves is a fugitive from justice. . This indictment also included Steven A. Welch, who was charged with violating 18 U.S.C. § 1343, but it was dismissed in respect to Welch on February 15, 1974, because of his death. . In their appeal briefs, Buckelew, Jenkins, and Drane have not argued error on this ruling, but have adopted the part of Scallion’s brief covering this issue.' Scallion" }, { "docid": "7255802", "title": "", "text": "to convince the jury that he lacked the requisite intent to defraud. To this effect, he noted that he had only participated in approximately ten of the eighty flip transactions and that he had made, at most, $1,000 per flip transaction, whereas Parr and the others had made tens of thousands of dollars. Additionally, Owens argued that the kickbacks were for expedited, not fraudulent, appraisals. The jury subsequently convicted Owens of two counts of mail fraud and of one count of wire fraud, and the district court sentenced him to thirty-three months of imprisonment on each count to run concurrently. II. Analysis Initially, Owens contends that the district court erred in admitting certain parts of Miaso’s testimony, which according to Owens, “violated Rule 704(b) of the Federal Rules of Evidence [because] the expert testified] to the ultimate issue of whether the appraisals done by defendant were fraudulent in nature.” Federal Rule of Evidence 704 provides: (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. In other words, Rule 704 allows testimony regarding an ultimate issue except when that ultimate issue concerns the defendant’s mental state or condition and that issue constitutes an element or defense of the crime charged. On appeal, Owens contends that Miaso’s testimony violated Rule 704(b), and the government first responds by asserting that defense counsel failed to preserve the error for review by objecting to the testimony at trial on Rule 704(b) grounds. Immediately prior to expert witness Mi-aso taking the witness stand, Owens objected to any testimony by Miaso that Owens’ appraisal reports were fraudulent:" }, { "docid": "22944575", "title": "", "text": "upon whether it is helpful to the trial of fact. See Fed.R.Evid. 702; 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 702.02[2] (Joseph M. McLaughlin ed., 2d ed. 1997) (“The trial judge has broad discretion to admit or exclude expert testimony under the test of ‘helpfulness’.... In determining the admissibility of expert evidence, the trial judge must also consider whether the general relevancy requirements of Rules 401-403 are met.”). Rule 704 provides: Opinion on Ultimate Issue (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. Fed.R.Evid. 704. The accompanying advisory committee’s note states: The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact. In order to render this approach fully effective and to allay any doubt on the subject, the so-called “ultimate issue” rule is specifically abolished by the instant rule. The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Fed.R.Evid. 704 advisory committee’s note. Rule 704 prohibits “testimony from which it necessarily follows, if the testimony is credited, that the defendant did or" }, { "docid": "15380205", "title": "", "text": "the indictment. We accept instead the district court’s conclusion that the evidence had independent relevance as to the existence of the drug conspiracy. We also reject as meritless the objection by defendant Jimmy Lee Nixon to the limited admission of a map of southern Georgia and northern Florida. Nixon argues that the map was unduly prejudicial to his defense by creating a suspicious connection between the county of his residence and Jacksonville, Florida. The district court admitted the map for the limited purpose of assisting a police officer in identifying the location of Savannah and Springfield, Georgia. This did not amount to an abuse of the judge’s broad discretion. Jimmy Lee Nixon further objects to the admission of cocaine base seized from his mobile home pursuant to a search warrant. Nixon claims that, because the warrant and its supporting affidavit were signed at the same date and time, the magistrate could not have properly based his decision on a fair and adequate consideration of the evidence contained in the affidavit. This argument amounts to no more than unsubstantiated speculation and, standing alone, fails to meet even defendant’s initial burden of persuading the court that the evidence should be suppressed. See United States v. Evans, 572 F.2d 455, 486 (5th Cir.1978). D. Motions for Mistrial Defendant Henry Manns appeals the district court’s denial of his motion for mistrial, made after a police detective used the term “conspiracy” during testimony at trial. Manns contends that, although the witness testified as an expert about drug dealing activities, his use of the term “conspiracy” amounted to a conclusion as to the ultimate issue, usurping the jury’s proper role. Rule 704 of the Federal Rules of Evidence provides that an expert’s “testimony in the form of an opinion or inference otherwise admissable is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704. The police detective’s use of the term “conspiracy” on several occasions — always in response to questions during cross-examination by the defense — was not objected to or otherwise challenged at the time. As" }, { "docid": "16981664", "title": "", "text": "Comprehensive Crime Control Act of 1984, effective October 12, 1984, made several changes affecting the defense of insanity. The primary substantive change, contained in 18 U.S.C. § 20, altered the test for insanity and shifted the burden of proof on the issue to the defendant. In addition, the Act also amended Rule 704 of the Federal Rules of Evidence. Prior to the passage of the Act, former Rule 704 provided: Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. As amended, Rule 704 provides: (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. The crimes for which Alexander was indicted occurred on or about the first day of November, 1982, and on or about the first day of January, 1983. The provisions of the Comprehensive Crime Control Act of 1984 took effect on October 12, 1984. Alexander was convicted after a two day trial on June 3, 1985. Alexander’s first assignment of error contends that the application of Rule 704(b) of the Federal Rules of Evidence violates the ex post facto clause of the Constitution. U.S.Const. art. I, § 9, cl. 3. In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Supreme Court outlined the two elements necessary to establish an ex post facto law: (1) the law must be retrospective, and (2) it must disadvantage the offender affected by it. The Supreme Court, however, has also held that a change in the law which" }, { "docid": "3433101", "title": "", "text": "thereby don’t know where to locate themselves. That’s why the assistance, as provided, is needed. United States v. Bosch, No. CR-86-746RAG-1 (C.D.Cal.), Reporter’s Transcript of Proceedings (RT) at 88-89 (Nov. 5, 1986). Because Newbrough had training and experience in conducting narcotics investigations and explained a basis for his opinion that would help the jury determine Bosch’s role in the charged offense, the district court did not abuse its discretion by admitting this testimony. See United States v. Patterson, 819 F.2d 1495, 1507 (9th Cir.1987) (“Expert testimony on the structure of criminal enterprises is allowed to help the jury understand the scheme and assess a defendant’s involvement in it.”). Bosch also claims, however, that this testimony violated Rule 704 of the Federal Rules of Evidence which provides in part, “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged.” Fed.R.Evid. 704(b); accord Kinsey, 843 F.2d at 388. Newbrough did not explicitly state that Bosch was guilty or that he had the mental state constituting an element of aiding and abetting possession with intent to distribute cocaine. Bosch argues, however, that such an opinion can be inferred from Newbrough’s statement that Bosch “did, in fact, aid and abet the distribution of cocaine,” when combined with the trial judge’s instruction to the jury that “[y]ou may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done.” RT at 25-26 (Nov. 19, 1986). Rule 704, on the other hand, also provides that “[ejxcept as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704(a); accord Kinsey, 843 F.2d at 388. Newbrough’s testimony, rather than opining on Bosch’s mental state or his guilt, was directed primarily at whether Bosch’s activities helped in" } ]

[ { "docid": "19262707", "title": "", "text": "Plaintiffs filed the instant appeal from the District Court’s order. II. Our jurisdiction to review this appeal is based on 28 U.S.C. §§ 158(d) and 1291. We exercise plenary review over the District Court’s decision to affirm the Bankruptcy Court’s order. See Interface Group-Nevada, Inc. v. Trans World Airlines (In re Trans World Airlines, Inc.), 145 F.3d 124, 130 (3d Cir.1998). We use the same standards to review the Bankruptcy Court’s confirmation order as did the District Court; we therefore “review the Bankruptcy Court’s legal determinations de novo, its factual findings for clear error, and its exercises of discretion for abuse thereof.” Manus Corp. v. NRG Energy, Inc. (In re O’Brien Environmental Energy, Inc.), 188 F.3d 116, 122 (3d Cir.1999) (citing Interface Group-Nevada, 145 F.3d at 131). The Continental Debtors contend that we should not address the merits of Plaintiffs’ claim because of claim preclusion and equitable mootness. We first will address, and reject, these arguments. Claim Preclusion The Continental Debtors argue that Plaintiffs’ objections to the plan are precluded by virtue of Plaintiffs’ failure to object to the Tripartite Settlement. Claim preclusion requires a final judgment on the merits in a prior suit involving the same parties, or their privities, and a subsequent suit based on the same cause of action. See CoreStates Bank, N.A. v. Huts America, Inc., 176 F.3d 187, 194 (3d Cir.1999) (citing Board of Trustees of Trucking Employees Welfare Fund, Inc. v. Centra, 983 F.2d 495, 504 (3d Cir.1992)); Sanders Con fectionery Products, Inc., v. Heller Financial, Inc., 973 F.2d 474, 480 (6th Cir.1992). Claim preclusion commonly occurs when a party fails to raise issues in the plan confirmation process that could have been addressed in that forum, or fails to appeal the confirmation order; in such instances, a collateral attack on the validity of a provision of that plan, such as a non-debtor release or injunction, often has been unsuccessful. In the instant appeal, the Continental Debtors do not contend that we should bar Plaintiffs’ appeal for failure to prosecute their objections at the Continental Debtors’ plan confirmation hearing. Rather, their claim preclusion argument" } ]

[ { "docid": "1321075", "title": "", "text": "be made to the bankruptcy court which is supervising the reorganization____ In contrast, the issue of the applicability of the automatic stay to the litigation in question is within the competence of both courts — the court in which the litigation is pending, ... and the bankruptcy court supervising the reorganization' ’). .The binding effect of a former adjudication, often genetically termed res judicata, can take either of two forms. Claim preclusion (traditionally termed res judicata or \"merger and bar”) \" ‘bars relitigation of the same claim between parties or their privies where a final judgment has been rendered upon the merits by a court of competent jurisdiction.' ” Plough v. West Des Moines Community Sch. Dist., 70 F.3d 512, 517 (8th Cir.1995) (quoting Smith v. Updegraff, 744 F.2d 1354, 1362 (8th Cir.1984)). Issue preclusion (or “collateral estoppel\") applies to legal or factual issues \"actually and necessarily deter mined,\" with such a determination becoming \"conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Both the principle of res judicata and the doctrine of collateral estoppel generally apply to bankruptcy proceedings. Katchen v. Landy, 382 U.S. 323, 334, 86 S.Ct. 467, 475, 15 L.Ed.2d 391 (1966). Under Georgia law, a theory of issue preclusion, known as estoppel by judgment, applies when the parties or others in privity with them necessarily must have adjudicated the same issue in order for the previous judgment to have been entered, or when that matter actually was litigated and determined. Kent v. Kent, 265 Ga. 211, 211-212, 452 S.E.2d 764 (1995) (citing Boozer v. Higdon, 252 Ga. 276, 278, 313 S.E.2d 100 (1984)); Dept. of Human Resources v. Fleeman, 263 Ga. 756, 757, 439 S.E.2d 474 (1994); Oxendine v. Elliott, 170 Ga.App. 422, 431, 317 S.E.2d 555 (1984); Blakely v. Couch, 129 Ga.App. 625, 626, 200 S.E.2d 493 (1973). \"Collateral estoppel in Georgia stems from this general principle of law, as state courts have used the conclusive nature of a judgment" }, { "docid": "12173567", "title": "", "text": "applying a deferential standard of review. III. The Bankruptcy Court erred, however, with respect to the merits. On April 11, 2005, the Bankruptcy Court filed an order granting the Defendant’s Motion to Dismiss Mullarkey’s Complaint. The Bankruptcy Court held that Mullarkey’s claims were precluded by the doctrines of res judicata, collateral estoppel, and alternatively, the entire controversy doctrine, because “[a]ll of [his] arguments have been repeatedly rejected by this Court, by the district court on appeal and on subsequent motions for reconsideration, as well as by the state court.” Based on the record before us, we are compelled to disagree. A. As part of its analysis of the res judicata and collateral estoppel doctrines, the Bankruptcy Court noted that there is no dispute as to party identity. It also found “that the claims and issues involving [Mullarkey] and the Defendants ... are identical to those previously raised and litigated not only in this Court, but in the district and state courts as well.” That Court stated that the language in Mullar-key’s present Complaint is similar to submissions he made in prior proceedings before the Bankruptcy Court and other courts. Finally, the Bankruptcy Court asserted that all of Mullarkey’s claims were considered and rejected in “its initial determination granting the Tamboers relief from the automatic stay in March 2001, as well as in the Debtor’s motion for a stay of the Stay Relief Order.” The doctrine of res judicata bars not only claims that were brought in a previous action, but also claims that could have been brought. Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3d Cir.2007). It “protects] litigants from the burden of relitigating an identical issue with the same party or his privy and ... promotes] judicial economy by preventing needless litigation.” Id. (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). Both New Jersey and federal law apply res judicata or claim preclusion when three circumstances are present: “(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and" }, { "docid": "18881464", "title": "", "text": "plan that required bankruptcy court approval. The district court ruled that the stock transfer agreement did not constitute a modification. Lane v. Peterson, No. 88-2145, slip op. at 8 (W.D.Ark. June 20, 1989). We affirm the district court’s dismissal of all claims against the defendants, although, in some respects, upon grounds different from those relied upon by the district court. II. DISCUSSION A. Preclusive Effect of Lane I We must first determine the extent to which the claims raised in this case are barred by this court’s prior decision in Lane I. We examine two preclusion principles: res judicata (claim preclusion) and collateral estoppel (issue preclusion). “Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). Thus, res judicata precludes the relitigation of a claim on grounds that were raised or could have been raised in the prior action. Poe v. John Deere Co., 695 F.2d 1103, 1105 (8th Cir.1982). “Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.” Parklane Hosiery, 439 U.S. at 326 n. 5, 99 S.Ct. at 649 n. 5 (citations omitted). Originally, collateral estoppel was limited by the principle of mutuality, which provided that “neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment.” Id. at 326-27, 99 S.Ct. at 649-50 (footnote omitted). However, the mutuality requirement under federal law has been abandoned. Now, a party may rely on collateral estoppel even though he or she is not bound by the prior judgment if the party against whom it is used had a full and fair opportunity and incentive to litigate the issue in the prior action." }, { "docid": "22464486", "title": "", "text": "submit evidence on it. . Technically, the court’s decision was based upon the doctrine of collateral estoppel, also referred to as issue preclusion. The Supreme Court has explained that: Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, ... the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). . The Unions also argue that Morrell waived its res judicata defense by failing to assert it during arbitration. We are satisfied that Mor-rell sufficiently preserved this defense, particularly in light of the evidence indicating that the parties did not intend or expect the arbitrator to reconsider the meaning of the no-strike clause. .Issue preclusion bars relitigation of an issue if the same issue was involved in both actions; the issue was actually litigated in the first action after a full and fair opportunity for litigation; the issue was actually decided in the first action on the merits; the disposition was sufficiently final; and resolution of the issue was necessary in the first action. See 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4416, at 137-38 (1981); see also Parklane Hosiery, 439 U.S. at 326 n. 5, 99 S.Ct. at 649 n. 5. It is only the finality requirement which is challenged in this appeal. . The Unions urge that this court resolved this issue in United States v. Arkansas, 791 F.2d 1573 (8th Cir.1986), by stating that ‘‘[t]he doctrine of res judicata therefore is simply inapplicable, for there has been no earlier final judgment from which the State could appeal.” Id. at 1576. The court there was addressing the narrow issue of whether a dismissal under Rule 54(b) of the Federal Rules" }, { "docid": "21092705", "title": "", "text": "the adversary proceeding, and that res judicata prevented Lang from relitigating the claim by motion. Lang appeals. II. DISCUSSION The binding effect of a former adjudication, often generically termed res judicata, can take one of two forms. Claim preclusion (traditionally termed res judicata or “merger and bar”) “ ‘bars relitigation of the same claim between parties or their privies where a final judgment has been rendered upon the merits by a court of competent jurisdiction.’ ” Plough v. West Des Moines Community Sch. Dist., 70 F.3d 512, 517 (8th Cir.1995) (quoting Smith v. Updegraff, 744 F.2d 1354, 1362 (8th Cir.1984)). Issue preclusion (or “collateral estoppel”) applies to legal or factual issues “actually and necessarily determined,” with such a determination becoming “conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). The principles of res judicata generally apply to bankruptcy proceedings. Katchen v. Landy, 382 U.S. 323, 334, 86 S.Ct. 467, 475, 15 L.Ed.2d 391 (1966). In this case the question is one of claim preclusion since the administrative expense claim Lang brought by motion was identical to Lang’s cross-claim in the prior adversary proceeding. Claim preclusion will bar a subsequent suit when: “(1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involved the same cause of action; and (4) both suits involved the same parties or their privies.” Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir.1983). Furthermore, the party against whom res judicata is asserted must have had a full and fair opportunity to litigate the matter in the proceeding that is to be given preclusive effect. Plough, 70 F.3d at 517. There is no dispute that the two proceedings at issue in this case involved the same parties and the same cause of action. Therefore, we need only determine: (1) whether the bankruptcy court had jurisdiction to decide the administrative expense claim in the adversary proceeding; (2) whether the" }, { "docid": "485214", "title": "", "text": "subsequent suits based on a different cause of action involving a party (or privy) to the prior litigation.” 18 Moore’s Federal Practice § 132.01 [1] (1999). “The normal rules of res judicata and collateral estoppel apply to the decisions of bankruptcy courts.” Katchen v. Landy, 382 U.S. 323, 334, 86 S.Ct. 467, 475, 15 L.Ed.2d 391 (1966); see Monarch Life Insurance Co. v. Ropes & Gray, 65 F.3d 973 (1st Cir.1995) (where plaintiff did not appeal from bankruptcy court injunction, plaintiff was collaterally estopped from litigating issue whether injunction exceeded court’s jurisdiction); Turshen v. Chapman, 823 F.2d 836 (4th Cir.1987) (bankruptcy court’s determination that trustee did not breach his fiduciary duty precluded subsequent relitigation of same issue in district court). The factual issue of whether Primus received notice of plaintiffs bankruptcy will be a critical and essential factor in the resolution of both the core and non-core claims in this case. Under the authorities cited above, the bankruptcy court’s determination of this issue would collaterally estop Primus from relitigating the issue in this Court. The question is therefore whether this collateral estoppel would violate Primus’ right to a jury trial on the non-core FDCPA and RICO claims. At the March 6, 2000 hearing on this motion, plaintiff argued that even if the Bankruptcy Court’s factual determinations would have collateral estoppel effect on her non-core claims, this would not be a violation of Primus’ Seventh Amendment rights. As support for this assertion, plaintiff cited Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) and Katchen v. Landy, supra. However, the appropriate starting point for this analysis is Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). The plaintiff in Beacon Theatres operated movie theaters and contracted with movie distributors for the exclusive right to show “first run” pictures. Beacon The-atres, a competitor of the plaintiff, notified the plaintiff that it considered the contracts to be in violation of antitrust laws. The plaintiff filed suit seeking both a de claratory judgment that its contracts did not violate the antitrust" }, { "docid": "15712343", "title": "", "text": "n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). In its classic form, collateral estoppel also required “mutuality” — i.e., that the parties on both sides of the current proceeding be bound by the judgment in the prior proceeding. Parklane Hosiery, 439 U.S. at 326-27, 99 S.Ct. 645. Under the modern doctrine of non-mutual issue preclusion, however, a litigant may also be estopped from advancing a position that he or she has presented and lost in a prior proceeding against a different adversary. See Blonder-Tongue Labs., Inc. v. Univ. of III. Found., 402 U.S. 313, 324, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Parklane Hosiery, 439 U.S. at 329, 99 S.Ct. 645. For defensive collateral es-toppel — a form of non-mutual issue preclusion — to apply, the party to be precluded must have had a “full and fair” opportunity to litigate the issue in the first action. See Parklane Hosiery, 439 U.S. at 328, 332, 99 S.Ct. 645; Blonder-Tongue Labs., 402 U.S. at 331, 333, 91 S.Ct. 1434. Ms. Peloro objected to the Trustee’s denial of her claim, and the Bankruptcy Court decided against Ms. Peloro, finding “that the two securities at issue here, [the Ashland and Coleman securities,] were properly customer property under SIPA.” Bankr.Ct. Op. 15, App. 392a. The District Court found that, as to the Trustee, Ms. Peloro was barred from relitigating the question of whether the bonds were “properly customer property,” because she had litigated the same issue against the same party in the earlier bankruptcy proceeding. Applying the doctrine of non-mutual issue preclusion, the court further found that “[b]ecause no facts indicate that Ms. Peloro did not have a full and fair opportunity to litigate this issue in the prior bankruptcy proceeding, preclusion of claims against R.H. is appropriate in this case.” D. Ct. Op. 14, App. 16a. We agree. All of the “prerequisites for the application of issue preclusion” identified in Burlington Northern Railroad are present here. Cf. Katchen v. Landy, 382 U.S. 323, 334, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966) (“The normal rules of res judicata and collateral estoppel apply to the" }, { "docid": "10008431", "title": "", "text": "66 L.Ed.2d 308 (1980). Oshkosh Truck argues that, despite the prohibitions of the seventh amendment and the concerns noted in Beacon Theatres, the Supreme Court’s holding in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), requires us to apply collateral estoppel in this case. The issue in Parklane Hosiery was “whether a party who has had issues of fact adjudicated adversely to it in an equitable action may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought against it by a new party.” Id. at 324, 99 S.Ct. at 648. The Supreme Court stated that it had already held in Katchen v. Tandy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966), that “an equitable determination can have collateral estoppel effect in a subsequent legal action and this estoppel does not violate the Seventh Amendment.” Id. 439 U.S. at 335, 99 S.Ct. at 653. The Court found this principle implicit in the Beacon Theatres holding: It is thus clear that the Court in the Beacon Theatres case thought that if an issue common to both legal and equitable claims was first determined by a judge, relitigation of the issue before a jury might be foreclosed by res judicata or collateral estoppel. To avoid this result, the Court held that when legal and equitable claims are joined in the same action, the trial judge has only limited discretion in determining the sequence of trial and “that discretion ... must, wherever possible, be exercised to preserve jury trial.” Id. at 334, 99 S.Ct. at 653 (quoting Beacon Theatres, 359 U.S. at 510, 79 S.Ct. at 956). In Parklane, the party against whom collateral estoppel was invoked had been a party in another action, an SEC suit brought in the district court in which a jury was not required. Judgment had already been issued in that proceeding and had been affirmed by the court of appeals. The Supreme Court held, inter alia, that this first judgment would have a preclusive effect on the later action, even though" }, { "docid": "22000451", "title": "", "text": "The Tax Court’s jurisdiction, once it attaches, extends to the entire subject of the correct tax for the particular year. Solitron Devices v. United States, 16 Cl.Ct. 561, 567 (1989). Accordingly, the Tax Court has exclusive jurisdiction of all claims the Plaintiff asserts pertaining to the 1999 and 2000 tax years. Those claims must therefore be dismissed for lack of jurisdiction. B. Tax Years 1992, 1999, and 2000—Res Judicata The Government also argues that the Plaintiffs claims for refunds for tax years 1992, 1999, and 2000 must be dismissed because they are precluded by the doctrine of res judicata. Under the doctrine of res judi-cata (or claim preclusion), “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.Cir.2003). To prevail on grounds of res judicata, the Government must prove that (1) the parties to this action are identical or in privity with those in the prior litigation; (2) the prior suit proceeded to a final judgment on the merits; and (3) the claims asserted in this action are based on the same set of transactional facts as those previously litigated. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1362 (Fed.Cir.2000). Res judicata bars the Plaintiffs claims for refunds for tax years 1992, 1999, and 2000 because the Plaintiff asserted claims associated with those tax years in previous litigation and, in each ease, the court issued a final decision on the merits. Specifically, as discussed above, the Plaintiff filed a petition with the Tax Court on June 13, 2003, to contest the notice of deficiency for tax years 1999 and 2000 that was issued by the I.R.S. on March 17, 2003. See Def. Mot. to Dismiss App. B at B32. The Tax Court issued a Memorandum" }, { "docid": "5405761", "title": "", "text": "the relitigation of an issue that was actually litigated and decided in an earlier proceeding. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). Its purpose is to protect parties from multiple lawsuits, prevent the possibility of inconsistent decisions, and conserve judicial resources. Id.; Montana v. U.S., 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); In re Bowen, 198 B.R. 551, 555 (9th Cir. BAP 1996) (citations omitted). Although claim preclusion (or res judi-cata) has limited applicability in bankruptcy cases, Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), a party may invoke the doctrine of issue preclusion. Grogan v. Garner, 498 U.S. 279, 284 & n. 11, 111 S.Ct. 654, 658 & n. 11, 112 L.Ed.2d 755 (1991). Specifically, this doctrine applies in dischargeability proceedings. Id.; In re Bugna, 33 F.3d 1054, 1056 (9th Cir.1994). At issue here is the effect of a prior federal district court judgment upon the present bankruptcy adversary proceeding. The word federal is emphasized because, while bankruptcy courts apply the issue preclusion rules of a particular state when deciding upon the preclusive effect of judgments issued by courts of that state, see e.g., In re Nourbakhsh, 67 F.3d 798, 800 (9th Cir.1995), when the prior decision emanates from a federal court in a federal question case, the federal law of issue preclusion applies. Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir.1988); In re Bowen, 198 B.R. 551, 555 (9th Cir. BAP 1996) (citation omitted). Under the federal law of issue preclusion, the party asserting it has the burden of proving the elements are met. In re Silva, 190 B.R. 889, 892 (9th Cir. BAP 1995). Those elements are: 1) The issue sought to be precluded from relitigation must be identical to that decided in a former proceeding; 2) The issue must have been actually litigated in the former proceeding; 3) It must have been necessarily decided in the former proceeding; 4) The decision in the former proceeding must be final and on the merits;" }, { "docid": "12173568", "title": "", "text": "to submissions he made in prior proceedings before the Bankruptcy Court and other courts. Finally, the Bankruptcy Court asserted that all of Mullarkey’s claims were considered and rejected in “its initial determination granting the Tamboers relief from the automatic stay in March 2001, as well as in the Debtor’s motion for a stay of the Stay Relief Order.” The doctrine of res judicata bars not only claims that were brought in a previous action, but also claims that could have been brought. Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3d Cir.2007). It “protects] litigants from the burden of relitigating an identical issue with the same party or his privy and ... promotes] judicial economy by preventing needless litigation.” Id. (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). Both New Jersey and federal law apply res judicata or claim preclusion when three circumstances are present: “(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.” Id. (quoting Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir.1991)). In addition, New Jersey courts bar the relitigation of finally determined issues through the doctrine of collateral estoppel. Collateral estoppel “bars reliti-gation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action.” Tarus v. Borough of Pine Hill, 189 N.J. 497, 916 A.2d 1036, 1050 (2007) (quotations omitted). A party asserting collateral estoppel must show that (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding. Twp. of Middletown v. Simon," }, { "docid": "4709427", "title": "", "text": "precludes relitigation of its rights in the Combine collateral. II. The United States Court of Appeals for the Sixth Circuit states the conditions for application of res judicata and collateral estoppel in Marlene Industries Corp. v. NLRB, 712 F.2d 1011, 1015-16 (6th Cir. 1983) (quoting Anchor Motor Freight, Inc. v. International Brotherhood of Teamsters, 700 F.2d 1067, 1069-70 (6th Cir. 1983)): This Court recently reiterated a summary of the related doctrines of res judi-cata and collateral estoppel as set forth in Montana v. United States, 440 U.S. 147, 153-154, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a “right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their priv-ies_” Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49 [18 S.Ct. 18, 27, 42 L.Ed. 355] (1897). Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action, [citations omitted] Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979); Scott, Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 2-3 (1942); Restatement (Second) of Judgments § 68 (Tent. Draft No. 4, Apr. 15, 1977) (issue preclusion). Application of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions. Southern Pacific R. Co., supra, 168 U.S. at 49, 18 S.Ct. at 27; Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 507, 61 L.Ed. 1148 (1917). To preclude parties from contesting matters that they have had a full and fair opportunity to" }, { "docid": "22271195", "title": "", "text": "court of competent jurisdiction, that determination is conclusive in subsequent suits, based on a different cause of action, involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). The district court considered the effect of collateral estoppel, but refused to apply the doctrine in this case because of its interpretation of the Supreme Court’s decision in Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). The district court reasoned that because defendants, as an original matter, were entitled to a jury trial on plaintiff’s § 1983 allegations, the non-jury verdict in Aikens v. Lash could not be used to collaterally estop them from presenting their eighth amendment arguments to the jury in a subsequent legal proceeding. The district court, however, failed to reinterpret Beacon Theaters in light of the Supreme Court’s more recent decision in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). In Parklane Hosiery, the Supreme Court held that a company which had a “full and fair” opportunity to litigate its claims in an injunctive proceeding initiated by the SEC was collaterally estopped from relitigating issues actually determined against it in that proceeding in a subsequent stockholder’s class action for damages. The Supreme Court considered and rejected the company’s argument that such an offensive use of collateral estoppel, based on a non-jury determination, violated its seventh amendment right to a jury trial. Citing both Beacon Theaters and Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966) the Supreme Court in Parklane Hosiery squarely recognized that “an equitable determination can have collateral estoppel effect and that this estoppel does not violate the Seventh Amendment.” 439 U.S. at 335, 99 S.Ct. at 653. As the second circuit decision in Parklane had noted, “[sjince the seventh amendment preserves the right to jury trial only with respect to issues of fact, once those issues have been fully and fairly adjudicated in a prior proceeding, nothing remains for trial, either with or without" }, { "docid": "16040110", "title": "", "text": "this 13th day of January, 2004, after careful consideration of Defendant’s Motion to Dismiss Plaintiffs Complaint, IT IS HEREBY ORDERED that all claims asserted against Defendants pursuant to 42 U.S.C. § 1983 are dismissed with prejudice. The clerk shall mark this case “CLOSED” forthwith. . The court also determined that while it dismissed the § 1983 claims \"over which [it] had original jurisdiction, [it] declined to exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3).” Leventry v. Tulowitzki, et al., No. 02-CV-171-J (W.D.Pa.). Thus, the court dismissed the state law claims without prejudice. Id. . Collateral estoppel differs from res judicata in that privity of both parties is not necessary in a second suit involving an issue previously litigated and decided. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (describing the distinction between offensive and defensive use of collateral estoppel). The essential elements of res judicata are: \"(1) a final judgment on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits.” Nash County Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 486 (4th Cir.1981). . Drug-seekers engage in the practice of doctor-shopping when they seek out physicians who will provide them with prescriptions for their desired narcotics. The drug-seeker may receive multiple, duplicative prescriptions for the same narcotics from different physicians by concealing or failing to disclose to one prescribing physician that he has received the same prescription from another physician. Leventry v. Tulowitzki, et al., No. 01-CV-220-J, in. 1 (W.D.Pa.). . Defendant Kevin Price, although not named in prior civil actions initiated by Plaintiff, is permitted under the doctrine of collateral es-toppel to advance the claim that Plaintiff is barred from relitigating the same issues since collateral estoppel does not require privity of both parties in a second suit. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). . In their Motion" }, { "docid": "1223378", "title": "", "text": "applicable to nondischargeability proceedings in bankruptcy cases. Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“[Collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).”) Though bankruptcy courts have exclusive jurisdiction to determine dischargeability issues, this “does not require the bankruptcy court to redetermine all the underlying facts” of the case if they were previously determined in an earlier lawsuit. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981). “[W]here all the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues.” Id. at 228. The application of issue preclusion in a nondischargeability action de pends on whether the prior state court judgment would be afforded preclusive effect under state law. The Spring Works, Inc. v. Sarff (In re Sarff), 242 B.R. 620, 624 (6th Cir. BAP 2000). In order to successfully assert collateral estoppel under Ohio law, a party must plead and prove the following elements: (1) the party against whom es-toppel is sought was a party or in privity with a party to the prior action; (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) the issue must have been identical to the issue involved in the prior suit. Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). First, the party against whom issue preclusion is being asserted here, Defendant Naomi E. Powers, was defendant in the prior litigation, thereby satisfying the privity requirement. Second, the State Court’s Judgment followed a bench trial at which both parties were present and represented by counsel (Judgment at 1), which satisfies the second requirement that parties had full and fair opportunity to litigate. Third, the State Court issued specific findings regarding Defendant’s actions and her underlying motivations, indicating that those facts were either admitted or tried before the Court; neither" }, { "docid": "15712342", "title": "", "text": "New Jersey law. Thus, if the District Court was correct in finding itself bound by the Bankruptcy Court’s determination that the certificated securities were customer property, then the District Court was also correct in granting summary judgment in favor of the Trustee and R.H. We now consider whether the District Court was correct in finding that issue preclusion barred reliti-gation of the customer property issue. (iii) Issue preclusion, or collateral estoppel, prevents parties from relitigating an issue that has already been actually litigated. “The prerequisites for the appli cation of issue preclusion are satisfied when: ‘(1) the issue sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the determination [was] essential to the prior judgment.’ ” Burlington Northern Railroad Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227, 1231-32 (3d Cir.1995) (quoting In re Graham, 973 F.2d 1089, 1097 (3d Cir.1992)); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). In its classic form, collateral estoppel also required “mutuality” — i.e., that the parties on both sides of the current proceeding be bound by the judgment in the prior proceeding. Parklane Hosiery, 439 U.S. at 326-27, 99 S.Ct. 645. Under the modern doctrine of non-mutual issue preclusion, however, a litigant may also be estopped from advancing a position that he or she has presented and lost in a prior proceeding against a different adversary. See Blonder-Tongue Labs., Inc. v. Univ. of III. Found., 402 U.S. 313, 324, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Parklane Hosiery, 439 U.S. at 329, 99 S.Ct. 645. For defensive collateral es-toppel — a form of non-mutual issue preclusion — to apply, the party to be precluded must have had a “full and fair” opportunity to litigate the issue in the first action. See Parklane Hosiery, 439 U.S. at 328, 332, 99 S.Ct. 645; Blonder-Tongue Labs., 402 U.S. at 331, 333, 91 S.Ct. 1434. Ms. Peloro objected to the Trustee’s denial" }, { "docid": "23254719", "title": "", "text": "at issue in this action, derives from the simple principle that “later courts should honor the first actual decision of a matter that has been actually litigated.” 18 Chaeles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Prooedure § 4416 (1981) [hereinafter Wright & Miller]. This doctrine ensures that “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation,” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). The prerequisites for the application of issue preclusion are satisfied when: “(1) the issue sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the determination [was] essential to the prior judgment.” In re Graham, 973 F.2d 1089, 1097 (3d Cir.1992) (quoting In re Braen, 900 F.2d 621, 628-29 n. 5 (3d Cir.1979), cert. denied, 498 U.S. 1066, 111 S.Ct. 782, 112 L.Ed.2d 845 (1991)). Complete identity of parties in the two suits is not required for the application of issue preclusion. Here Hyundai, which was not a party to the first suit (the Atlantic Mutual action), attempts to use issue preclusion offensively against Burlington, which was a party in the first action. Such an application of issue preclusion is referred to as offensive non-mutual collateral estoppel, which has been recognized as proper by the Supreme Court in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). The Court in Parklane concluded that “a litigant who was not a party to a prior judgment may nevertheless use that judgment ‘offensively to prevent a defendant from relitigating issues resolved in the earlier proceeding,” id at 326, 99 S.Ct. at 649, subject to an overriding fairness determination by the trial judge. B. The Exception for Unmixed Questions of Law In this action, the parties did not dispute (with" }, { "docid": "7593167", "title": "", "text": "is rejected, its validity may not be relitigated in another proceeding on the claim.” Katchen v. Landy, 382 U.S. 323, 334, 86 S.Ct. 467, 15 L.Ed.2d 391 (1966) (citations omitted). As to the fourth element of res judicata, Oren’s claim that Defendants engaged in fraudulent misrepresentation in their presentation to Judge Milton of the appropriate calculation of his claim, addresses the same issues that were addressed in the Adversary Proceeding. A transactional approach is used to determine whether claims, asserted in different proceedings, are the same for res judicata purposes. Clarkstown Recycling Ctr., Inc. v. Parker, Chapin Flattau & Klimpl, LLP, 1 F.Supp.2d 327, 329 (S.D.N.Y.1998). Applying this approach, the court must determine whether the two actions involve the same transaction, evidence, and facts. Sure-Snap Corp. v. State St. Bank & Trust Co., 948 F.2d 869, 874 (2d Cir.1991). Oren’s claim of fraudulent misrepresentation in the State Court Action involves the identical transaction, evidence, and facts as the claims litigated in the Adversary Proceeding concerning the appropriate method of calculating Oren’s claim, and the amount of interest he was legally entitled to charge. These claims all relate to the calculation of Oren’s proof of claim, and therefore this element of res judicata is satisfied as well. In addition to res judicata, the doctrine of collateral estoppel also bars Oren’s claim of fraudulent misrepresentation. “Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (citation omitted). Collateral estoppel, however, is a narrower doctrine than res judicata, and serves to preclude parties from relitigating specific issues that were “raised, litigated, and actually decided by a judgment in a prior proceeding, regardless of whether the two suits are based on the same cause of action.” In re Adler, 395 B.R. 827, 835 (E.D.N.Y.2008) (quoting Balderman v. U.S. Veterans Admin., 870 F.2d 57, 62 (2d Cir.1989)). For collateral" }, { "docid": "3534753", "title": "", "text": "does not control federal trademark registration, on principles of either res ju-dicata or collateral estoppel. Mayer/Berkshire states that the decision in the infringement trial was based on evidence showing that much of Berkshire Fashions’ use of the word BERKSHIRE was in its trade name, in usages such as the label “By Berkshire Fashions” or on packages, but not in trademark use; and that this presentation explains the jury verdict that there was not a likelihood of confusion between Berkshire Fashions’ and May er/Berkshire’s identical marks. Thus Mayer/Berkshire argues that the evidence presented to the district court does not warrant the summary judgment in the opposition proceeding. Mayer/Berkshire also states that the Board is required to consider issues of priority of use and the scope of the goods in the Class 25 application, issues that were not before the district court. Mayer/Berkshire urges that preclusion was improperly applied by the Board. Res judicata, or claim preclusion, protects against re-litigation of a previously adjudicated claim between the same parties or their privies. As discussed in Parklane Hosiery Company, Inc. v. Shore., 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), “Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action.” In Jet, Inc. v. Sewage Aeration Systems, 223 F.3d 1360, 1362 (Fed.Cir.2000) this court on reviewing a cancellation proceeding on appeal from the Board, elaborated that “a second suit will be barred by claim preclusion if: (1) there is identity of parties (or their privies); (2) there has been an earlier final judgment on the merits of a claim; and (3) the second claim is based on the same set of transactional facts as the first.” In the absence of res judicata, the related principle of collateral estoppel or issue preclusion can also bar relitigation of the same issue in a second action. In Parklane, 439 U.S. at 326 n. 5, 99 S.Ct. 645, the Court explained that “[ujnder the doctrine of collateral estoppel, on" }, { "docid": "3228550", "title": "", "text": "New Jersey law. See Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Towers, Perrin, Forster & Crosby, Inc. v. Brown, 732 F.2d 345 (3d Cir.1984). Res judicata and collateral estoppel are “related but independent preclusion concepts.” Gregory v. Chehi, 843 F.2d 111, 115 (3d Cir.1988). These doctrines generally prohibit relitigation of claims and issues decided in a prior proceeding. As summarized by the Supreme Court in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979): Under the doctrine of res judicata, judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. a (citing IB J. Moore, Moore’s Federal Practice 110.405(1) at 622-624 (2d ed. 1974)). The term res judicata has been given a variety of meanings, some of which incorporate the distinct concept of collateral estoppel. See Gregory, 843 F.2d at 115 (citing A. Vestal, Res Judicata/Preclusion, V-13 to 14 (1969)). “To reduce the confusion that resulted from the interchangeable use of these terms, the courts have refined the nomenclature used in the preclusion doctrine.’’ Id. (citing Wade v. City of Pittsburgh, 765 F.2d 405, 408 (3d Cir.1985)). The terms “claim preclusion” and “issue preclusion” will be used in this opinion. See Migra, 465 U.S. at 77, n. 1, 104 S.Ct. at 894, n. 1; Electro-Miniatures Corp. v. Wendon Co., 889 F.2d 41, 44 (3d cir.1989); Gregory, 843 F.2d at 115-116. The term claim preclusion replaces res judi-cata; the term issue preclusion replaces collateral estoppel. Electro-Miniatures, 889 F.2d at 44; Gregory, 843 F.2d at 116. Although issue and claim preclusion are similar, they have different consequences. “Claim preclusion refers to the effect of a judgment in foreclosing litigation of" } ]

[ { "docid": "22720106", "title": "", "text": "activity . . . .” Id., at 725. Again, the Court’s hand is forced somewhat by precedent — even those officials afforded absolute immunity from civil damages under § 1983 are susceptible to prosecution under §242 for the willful violation of civil rights. See Imbler v. Pachtman, 424 U. S. 409, 429 (1976). The Court has consistently held that the two provisions incorporate the same under-color-of-state-law requirement. See, e. g., Adickes v. S. H. Kress & Co., 398 U. S. 144, 152, n. 7 (1970); United States v. Price, 383 U. S., at 794, n. 7. In Senate the Court of Appeals held that a public defender’s demand for compensation from a client was made “ostensibly by virtue of [the attor ney’s] appointment ‘backed by the power of the state,’ ” and that his official position “gave him the opportunity to make the demands and clothed him with the authority of the state in so doing.” 477 F. 2d, at 308. Similarly, in this case, petitioner Shepard’s authority to withdraw from respondent’s case was derived from her “appointment ‘backed by the power of the state’ her official position “gave her the opportunity” to act so as allegedly to violate respondent’s constitutional rights. 1 do not discuss this issue in detail because the Court does not reach it, but I assume that public defenders should be afforded qualified immunity. Absolute immunity has been extended only to those in positions that have a common-law history of immunity. See, e. g., Pierson v. Ray, 386 U. S. 547, 554-555 (1967). Moreover, public defenders’ jobs do not subject them to conflicting responsibilities to a number of constituencies so that absolute immunity is necessary to ensure principled decisionmaking; in fact, the threat of § 1983 claims by dissatisfied clients may provide additional incentive for competent performance of a public defender’s duties. See Ferri v. Ackerman, 444 U. S. 193, 203-204 (1979)." } ]

[ { "docid": "23645250", "title": "", "text": "was clarified in Sparks v. Duval County Ranch Company Inc., 604 F.2d 976 (5th Cir. 1979) (en banc), aff’d sub nom., Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), in which this Court expressly overruled the doctrine of derivative immunity in § 1983 actions and held that a private person who conspires with a person acting under color of state law, even though the latter party may be immune from liability for his participation in the conspiracy, may be held liable for damages for his participation in the conspiracy. In reaching its holding, the Court quoted from Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) wherein the Supreme Court declared that: a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983, “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents...” 398 U.S. at 152, 90 S.Ct. at 1605-1606, 26 L.Ed.2d at 151, quoting United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). Since the Sparks decision this Court has directly held that private attorneys alleged to have conspired with immune State officials may be held liable under § 1983. Hen-zel v. Gerstein, 608 F.2d 654 (5th Cir. 1979). See Williams v. Rhoden, 629 F.2d 1099 (5th Cir. 1980). Accord Cook v. Houston Post, 616 F.2d 791 (5th Cir. 1980). It is now clear that the doctrine of derivative immunity will no longer operate to defeat the state action requirement necessary to hold Appellee Fleming liable for his alleged participation in a conspiracy to deny Richardson of his rights. We, therefore, hold the District Court erred in dismissing the case against Fleming on this ground. Although the basis underlying the District" }, { "docid": "13549909", "title": "", "text": "the extent Palmer and Sehay performed administrative functions. Therefore, we uphold the district court’s grant of qualified immunity to Palmer and Sehay in their administrative capacities for the same reasons we upheld the district court’s ruling as to the board members. Plaintiffs’ claims against Palmer and Sehay in their capacities as appointed defense counsel for plaintiffs in the state court proceedings raise concerns other than qualified immunity. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2554-55, 101 L.Ed.2d 40 (1988). In Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981), the Supreme Court held that “a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Defendants Palmer and Sehay argued, and the district court concluded, that their actions in requesting and securing extensions of time to file briefs on plaintiffs’ behalf, even if those extensions were inordinate and unreasonable and ultimately deprived their clients of constitutional rights, were traditional lawyer functions. Plaintiffs, in turn, argued that because Palmer and Sehay permitted hundreds of appeals to remain un-briefed and made wholesale requests for inordinate extensions of time without considering whether their clients desired such extensions, they were not performing traditional lawyer functions. In Briscoe v. LaHue, 460 U.S. 325, 103 5.Ct. 1108, 75 L.Ed.2d 96 (1983), the Supreme Court held that “even though the defective performance of defense counsel may cause the trial process to deprive an accused person of his liberty in an unconstitutional manner, the lawyer who may be responsible for the unconstitutional state action does not himself act under color of state law within the meaning of § 1983.” Id. at 329 n. 6, 103 S.Ct. at 1112 n. 6 (citation omitted). Thus, even if- counsel performs what" }, { "docid": "22679738", "title": "", "text": "S. H. Kress & Co., 398 U. S. 144, 152 (1970); United States v. Price, 383 U. S. 787, 794 (1966). Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge. But here the allegations were that an official act of the defendant judge was the product of a corrupt conspiracy involving bribery of the judge. Under these allegations, the private parties conspiring with the judge were acting under color of state law; and it is of no consequence in this respect that the judge himself is immune from damages liability. Immunity does not change the character of the, judge’s action or that of his co-conspirators. Indeed, his immunity is dependent on the challenged conduct being an official judicial act within his statutory jurisdiction, broadly construed. Stump v. Sparkman, 435 U. S. 349, 356 (1978); Bradley v. Fisher, supra, at 352, 357. Private parties who corruptly conspire with a judge in connection with such conduct are thus acting under color of state law within the meaning of § 1983 as it has been construed in our prior cases. The complaint in this case was not defective for failure to allege that the private defendants were acting under color of state law, and the Court of Appeals was correct in rejecting its prior case authority to the contrary. Petitioner nevertheless insists that unless he is held to have an immunity derived from that of the judge, the latter’s official immunity will be seriously eroded. We are unpersuaded. The immunities of state officials that we have recognized for purposes of § 1983 are the equivalents of those that were recognized at common law, Owen v. City of Independence, 445 U. S. 622, 637-638 (1980); Imbler v. Pachtman, 424 U. S. 409, 417 (1976); Pierson v. Ray, 386 U. S. 547, 554 (1967), and the burden is on the official claiming immunity to demonstrate his entitlement. Cf. Buts v. Economou, 438 U. S. 478, 506 (1978). Thus, in Owen v. City of Independence," }, { "docid": "22707106", "title": "", "text": "is equally clear that the office of the lay witness who merely discharges his duty to testify truthfully is not performed under color of law within the meaning of § 1983. It is conceivable, however, that nongovernmental witnesses could act “under color of law” by conspiring with the prosecutor or other state officials. See Dennis v. Sparks, 449 U. S. 24, 27-29 (1980); Adickes v. S. H. Kress & Co., 398 U. S. 144, 152 (1970). It is therefore necessary to go beyond the “color of law” analysis to consider whether private witnesses may ever be held liable for damages under § 1983. Nor is this the only piece of 19th-century legislation in which the word “every” may not be given a literal reading. See National Society of Professional Engineers v. United States, 435 U. S. 679, 687-688 (1978). The availability of a common-law action for false accusations of crime, see post, at 350-351, is inapposite because petitioners present only the question of § 1983 liability for false testimony during a state-court criminal trial. See n. 5, supra. “We have therefore a large collection of cases where from time to time parties have attempted to get damages in cases like the present, but in no one instance has the action ever been held to be maintainable. If for centuries many persons have attempted to get a remedy for injuries like the present, and there is an entire absence of authority that such remedy exists, it shews the unanimous opinion of those who have held the place which we do now, that such an action is not maintainable.” Henderson v. Broomhead, 4 H. & N., at 578, 157 Eng. Rep., at 968. See generally M. Newell, Law of Defamation, Libel and Slander 425, 450-459 (1890); J. Townshend, A Treatise on the Wrongs Called Slander and Libel 353-354 (2d ed. 1872). See, e. g., Lawson v. Hicks, 38 Ala. 279, 285-288 (1862); Myers v. Hodges, 53 Fla. 197, 208-210, 44 So. 357, 361 (1907); Smith v. Howard, 28 Iowa 51, 56-57 (1869); Gardemal v. McWilliams, 43 La. Ann. 454, 457-458, 9 So." }, { "docid": "22616159", "title": "", "text": "private creditor as well as the State Attorney General. Again, however, the only question before this Court was the validity of a state statute. No claim was made that the creditor was a joint actor with the State or had acted under color of law. No damages were sought from the creditor. Again, there was no occasion for this Court to consider the status under §1983 of the private party, and there is not a word in the opinion that discusses this. As with Sniadach, Mitchell, and Di-Chem, Fuentes thus fails to establish that a private party’s mere invocation of state attachment or garnishment procedures represents action under color of law — even in a case in which those procedures are subsequently held to be unconstitutional. B In addition to relying on cases involving the constitutionality of state attachment and garnishment statutes, the Court advances a “joint participation” theory based on Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970). In Adickes the plaintiff sued a private restaurant under § 1983, alleging a conspiracy between the restaurant and local police to deprive her of the right to equal treatment in a place of public accommodation. Id., at 152, 153. Reversing the decision below, this Court upheld the cause of action. It found that the private defendant, in “conspiring” with local police to obtain official enforcement of a state custom of racial segregation, engaged in a “‘joint activity with the State or its agents’” and therefore acted under color of law within the meaning of §1983. Id., at 152 (quoting United States v. Price, 383 U. S., at 794). Contrary to the suggestion of the Court, however, Justice Harlan’s Court opinion in Adickes did not purport to define the term “under color of law.” Attending closely to the facts presented, the Court observed that “[wjhatever else may also be necessary to show that a person has acted under color of [a] statute’for purposes of § 1983,... we think it essential that he act with the knowledge of and pursuant to that statute.” 398 U. S., at 162, n." }, { "docid": "22731707", "title": "", "text": "the charges against the prosecutor in Imbler involved conduct having that association, including the alleged knowing use of false testimony at trial and the alleged deliberate suppression of exculpatory evidence. The Court expressly declined to decide whether absolute immunity extends to “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of an advocate.” Id., at 430-431. It was recognized, though, that “the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.” Id., at 431, n. 33. Decisions in later cases are consistent with the functional approach to immunity employed in Imbler. See, e. g., Westfall v. Erwin, 484 U. S. 292, 296, n. 3 (1988); Forester v. White, 484 U. S. 219, 224 (1988); Malley v. Briggs, 475 U. S. 335, 342-343 (1986); Mitchell v. Forsyth, 472 U. S. 511, 520-523 (1985); Briscoe v. LaHue, 460 U. S. 325 (1983); Harlow v. Fitzgerald, 457 U. S. 800 (1982); Butz v. Economou, 438 U. S. 478 (1978). These decisions have also emphasized that the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. Forrester, supra, at 224; Malley, supra, at 340; Harlow. supra, at 812; Blitz, supra, at 506. The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. We have been \"quite sparing\" in our recognition of absolute immunity, Forrester, supra, at 224, and have refused to extend it any \"further than its justification would warrant.\" Harlow, supra, at 811. III We now consider whether the absolute prosecutorial immunity recognized in Imbler is applicable to (a) respondent's participation in a probable-cause hearing, which led to the issuance of a search warrant, and (b) i~espondent's legal advice to the police regarding the use of hypnosis and the existence of probable cause to arrest petitioner. A We address first respondent's appearance as a lawyer for the State in the probable-cause hearing," }, { "docid": "22731711", "title": "", "text": "was . . . his job as a deputy prosecuting attorney and presenting that evidence. Even though it was fragmentary and didn’t go far enough, he did it as a part of his official duties.” Tr. 221. This interpretation is further confirmed by the Seventh Circuit’s summary of petitioner’s claims on appeal: “The question before the court is whether a state prosecutor is absolutely immune from suit under § 1983 for his acts of giving legal advice to two police officers about their proposed investigative conduct, and for eliciting misleading testimony from one of the officers in a subsequent probable cause hearing.” 894 F. 2d, at 950 (emphasis added). See also id., at 955, n. 6. Finally, the only “question presented” in the petition for a writ of certiorari that related to the search warrant hearing was limited to respondent’s conduct in the hearing: “II. Is a deputy prosecutor entitled to absolute immunity when he seeks a search warrant in a probable cause hearing and intentionally fails to fully inform the court by failing to state that the arrested person made an alleged confession while under hypnosis and yet had persistently denied committing any crime before and after the hypnosis?” Pet. for Cert, i (emphasis added). Therefore, like the courts below, we address only respondent’s participation in the search warrant hearing. Petitioner’s challenge to respondent’s participation in the search warrant hearing is similar to the claim in Briscoe v. LaHue, 460 U. S. 325 (1983). There, the plaintiff’s § 1983 claim was based on the allegation that a police officer had given perjured testimony at the plaintiff’s criminal trial. In holding that the officer was entitled to absolute immunity, we noted that witnesses were absolutely immune at common law from subsequent damages liability for their testimony in judicial proceedings “even if the witness knew the statements were false and made them with malice.” Id., at 332. Like witnesses, prosecutors and other lawyers were absolutely immune from damages liability at common law for making false or defamatory statements in judicial proceedings (at least so long as the statements were related to" }, { "docid": "22115887", "title": "", "text": "Dodson, supra, we held that appointed counsel in a state criminal prosecution, though paid and ultimately supervised by the State, does not act “under color of” state law in the normal course of conducting the defense. See also Ferri v. Ackerman, supra. In Dennis v. Sparks, 449 U. S. 24, 27-28 (1980), however, the Court held that an otherwise private person acts “under color of” state law when engaged in a conspiracy with state officials to deprive another of federal rights. Glover alleges that petitioners conspired with state officials, and his complaint, therefore, includes an adequate allegation of conduct “under color of” state law. Ill On its face § 1983 admits no immunities. But since 1951 this Court has consistently recognized that substantive doctrines of privilege and immunity may limit the relief available in § 1983 litigation. See Imbler v. Pachtman, 424 U. S. 409, 417-419 (1976); Pulliam v. Allen, 466 U. S. 522 (1984). The Court has recognized absolute §1983 immunity for legislators acting within their legislative roles, Tenney v. Brandhove, 341 U. S. 367 (1951), for judges acting within their judicial roles, Pierson v. Ray, 386 U. S. 547, 554-555 (1967), for prosecutors, Imbler v. Pachtman, supra, and for witnesses, Briscoe v. LaHue, 460 U. S. 325 (1983), and has recognized qualified immunity for state executive officers and school officials, see Scheuer v. Rhodes, 416 U. S. 232 (1974); Wood v. Strickland, 420 U. S. 308 (1975). Section 1983 immunities are “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Imbler v. Pachtman, supra, at 421; Pulliam v. Allen, supra, at 529. If an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983’s history or purposes nonetheless counsel against recognizing the same immunity in §1983 actions. See Imbler v. Pachtman, supra, at 424-429; Briscoe v. LaHue, supra, at 335-337. Using this framework we conclude that public defenders have no immunity from § 1983 liability for intentional misconduct of the" }, { "docid": "22766969", "title": "", "text": "matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required “Oath or affirmation” is a lawyer, the only function that she performs in giving sworn testimony is that of a witness. Finally, petitioner argues that denying her absolute immunity will have a “chilling effect” on prosecutors in the administration of justice. We are not persuaded. It may well be true that prosecutors in King County may abandon the practice of routinely attesting to the facts recited in a “Certification for Determination of Probable Cause” and pattern their procedures after those employed in other parts of the Nation. Petitioner presents no evidence that the administration of justice is harmed where the King County practice is not followed. In other respects, however, her argument addresses concerns that are not affected by our decision because we merely hold that § 1983 may provide a remedy for respondent insofar as petitioner performed the function of a complaining witness. We do not depart from our prior cases that have recognized that the prosecutor is fully protected by absolute immunity when performing the traditional functions of an advocate. See Imbler, 424 U. S., at 431; Buckley, 509 U. S., at 273. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is Affirmed. Washington Criminal Rule 2.2(a); see Wash. Rev. Code § 9A.72.085 (1994) (providing, inter alia, that a certification made under penalty of perjury is the equivalent of an affidavit). Accord, King County Local Criminal Rule 2.2. App. 20. Id, at 19-20. Id, at 20. Id, at 5. Id., at 5-6. Id., at 10. Id., at 21. See Briscoe v. LaHue, 460 U. S. 325, 337 (1983). Title 42 U. S. C. § 1983 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" }, { "docid": "20709402", "title": "", "text": "the pretrial suppression hearing. This claim is made possible by a footnote in Briscoe v. LaHue which stated that: [t]he petition [for writ of certiorari] does not raise the question of immunity for testimony at pretrial proceedings such as probable-cause hearings, nor does petitioners’ brief discuss whether the same immunity considerations that apply to trial testimony also apply to testimony at probable-cause hearings. We therefore do not decide whether respondent LaHue is entitled to absolute immunity for allegedly false testimony at two probable-cause hearings regarding petitioner Bris-coe. Id. at 328-29 n. 5, 103 S.Ct. at 1112 n. 5. However, the Ninth Circuit recently held that there is “no principled basis for distinguishing between the [adversarial] pretrial proceedings and the trial on the merits in determining whether absolute immunity should be granted to a police officer witness.” Holt v. Castaneda, 832 F.2d 123, 125 (9th Cir.1987); see also, Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987); Tripati v. INS, 784 F.2d 345, 348 (10th Cir.1986). We agree with that observation and with the conclusion that “[i]n adversarial pretrial proceedings as well as at trial, absolute witness immunity is essential if the truth-seeking function of the proceeding is to be fully served.” Id. at 127. Accordingly, we hold that police officers who testify at adversarial pretrial proceedings are entitled to absolute immunity from liability based on that testimony. We have considered Daloia’s other arguments, including his claim that the federal defendants failed to raise the defense of absolute immunity, and have found them to be unsupported by the record. Affirmed." }, { "docid": "22115886", "title": "", "text": "(1979), and Polk County v. Dodson, 454 U. S. 312 (1981). 700 F. 2d 556. On May 31, 1983, petitioners filed in this Court a petition for writ of certiorari to the Court of Appeals for the Ninth Circuit. On June 29, 1983, Glover filed a notice of appeal in the State Court of Oregon Court of Appeals on the consolidated judgment from the Marion County court. The Oregon Court of Appeals dismissed Glover’s appeal for failure to prosecute on August 22,1983. We issued a writ of certiorari to the Court of Appeals for the Ninth Circuit on October 3, 1983. 464 U. S. 813. II Title 42 U. S. C. § 1983 provides that “[e]very person” who acts “under color of” state law to deprive another of constitutional rights shall be liable in a suit for damages. Petitioners concede, and the Court of Appeals agreed, that Glover’s conspiracy allegations “cast the color of state law over [petitioners’] actions.” Brief for Petitioners 14; see 700 F. 2d., at 558, n. 1. In Polk County v. Dodson, supra, we held that appointed counsel in a state criminal prosecution, though paid and ultimately supervised by the State, does not act “under color of” state law in the normal course of conducting the defense. See also Ferri v. Ackerman, supra. In Dennis v. Sparks, 449 U. S. 24, 27-28 (1980), however, the Court held that an otherwise private person acts “under color of” state law when engaged in a conspiracy with state officials to deprive another of federal rights. Glover alleges that petitioners conspired with state officials, and his complaint, therefore, includes an adequate allegation of conduct “under color of” state law. Ill On its face § 1983 admits no immunities. But since 1951 this Court has consistently recognized that substantive doctrines of privilege and immunity may limit the relief available in § 1983 litigation. See Imbler v. Pachtman, 424 U. S. 409, 417-419 (1976); Pulliam v. Allen, 466 U. S. 522 (1984). The Court has recognized absolute §1983 immunity for legislators acting within their legislative roles, Tenney v. Brandhove, 341 U. S." }, { "docid": "22679737", "title": "", "text": "in their judicial capacities. Pierson v. Ray, 386 U. S. 547 (1967); Stump v. Sparkman, 435 U. S. 349 (1978).” Supreme Court of Virginia v. Consumers Union, 446 U. S. 719, 734-735 (1980). The courts below concluded that the judicial immunity doctrine required dismissal of the § 1983 action against the judge who issued the challenged injunction, and as the case comes to us, the judge has been properly dismissed from the suit on immunity grounds. It does not follow, however, that the action against the private parties accused of conspiring with the judge must also be dismissed. As the Court of Appeals correctly understood our cases to hold, to act “under color of” state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting “under color” of law for purposes of § 1983 actions. Adickes v. S. H. Kress & Co., 398 U. S. 144, 152 (1970); United States v. Price, 383 U. S. 787, 794 (1966). Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge. But here the allegations were that an official act of the defendant judge was the product of a corrupt conspiracy involving bribery of the judge. Under these allegations, the private parties conspiring with the judge were acting under color of state law; and it is of no consequence in this respect that the judge himself is immune from damages liability. Immunity does not change the character of the, judge’s action or that of his co-conspirators. Indeed, his immunity is dependent on the challenged conduct being an official judicial act within his statutory jurisdiction, broadly construed. Stump v. Sparkman, 435 U. S. 349, 356 (1978); Bradley v. Fisher, supra, at 352, 357. Private parties who corruptly conspire with a judge in connection with such conduct" }, { "docid": "5589351", "title": "", "text": "v. Swenson, 443 F.2d 329 (8th Cir.1971). Probable cause for arrest and probable cause for a search are, however, often litigated in a suppression hearing of a state criminal case to determine whether evidence seized in a wrongful arrest or search must be suppressed. Such litigation may serve to collaterally estop a litigant from asserting the claim in a § 1983 action. See Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). In the present case, we do not find that the issue of the legality of Sanders’ arrest had been previously litigated. There was no suppression hearing at the state trial, and the motion for dismissal for lack of probable cause clearly referred to whether there was sufficient evidence to go to the jury, not whether there was sufficient probable cause for arrest. We therefore hold that the district court erred in finding Sanders collaterally estopped from raising the issue of probable cause and in granting summary judgment for dismissal on this ground. B. SEARS ROEBUCK The only allegation made against Sears, Roebuck & Company in the § 1983 claim is that it is responsible under a theory of respondeat superior. Such a claim is not cognizable under § 1983. Section 1983 creates a cause of action against “every person, who under color of any statute, ordinance, regulation, custom, or usage” subjects any person to deprivation of immunities secured by the Constitution or federal laws. 42 U.S.C. § 1983 (1988). Although § 1983 secures most constitutional rights from infringement by governments, not private parties, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452, 42 L.Ed.2d 477 (1974), where a private party acts under color of state law, it can be held liable under § 1983. See e.g., Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (private individual deemed to act under color of state law if he or she is “willful participant in joint action with State or its agents”); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)" }, { "docid": "195172", "title": "", "text": "for testimony at child dependency proceedings and a custody hearing). Of particular interest is Briggs v. Goodwin, 712 F.2d 1444 (D.C.Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984), in which the D.C. Circuit read Briscoe to apply to “any judicial proceeding where the testimony of witnesses might be affected by the lack of immunity”: The fact that Briscoe involved statements at a trial whereas this case involves statements at a hearing on a motion during the grand jury phase of an investigation is not a distinction that allows a different result. Briscoe emphasized the concern that the absence of immunity would interfere with the ability of “judicial proceedings” “to determine where the truth lies.” That concern applies not only to trials, but to any judicial proceeding where the testimony of witnesses might be affected by the lack of immunity. Thus, the rationale of Bris-coe applies with equal force whenever a witness testifies in a judicial proceeding the function of which is to ascertain factual information. Id. at 1448-49 (footnotes omitted). Appellant asserts that the Briscoe Court expressly reserved the question of immunity for witnesses in pretrial proceedings and that the outcome in this case, therefore, is not controlled by Briscoe. Appellant bases his assertion on the following footnote in the Court’s opinion: The petition [for writ of certiorari] does not raise the question of immunity for testimony at pretrial proceedings such as probable-cause hearings, nor does petitioners’ brief discuss whether the same immunity considerations that apply to trial testimony also apply to testimony at probable-cause hearings. We therefore do not decide whether respondent LaHue is entitled to absolute immunity for allegedly false testimony at two probable-cause hearings regarding petitioner Bris-coe. 460 U.S. at 329 n. 5, 103 S.Ct. at 1112 n. 5. We read the Supreme Court’s language as reserving the question of immunity for witnesses at probable-cause hearings in particular, rather than at all pretrial proceedings in general. It is understandable that the Court would defer decision on immunity for witnesses at probable-cause hearings. As Justice Marshall observed in dissent, “the policy considerations applicable" }, { "docid": "20709401", "title": "", "text": "is “not subject to as rigorous a standard as formal pleadings prepared by an attorney,” Washington v. James, 782 F.2d 1134, 1138 (2d Cir.1986) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam)), we construe Daloia’s Section 1983 claim as a Bivens action against the federal defendants. 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). The prosecutor’s activities in this case were all “intimately associated with the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); see Barr v. Abrams, 810 F.2d 358, 360-61 (2d Cir.1987), and he is therefore entitled to absolute immunity. Similarly, Briscoe v. LaHue immunizes the F.B.I. agents from any action based upon their testimony at Daloia’s trial. 460 U.S. at 342-46, 103 S.Ct. at 1119-21. Daloia’s remaining claim is against the F.B.I. agents and the arresting New York City police officer for their testimony at the pretrial suppression hearing. This claim is made possible by a footnote in Briscoe v. LaHue which stated that: [t]he petition [for writ of certiorari] does not raise the question of immunity for testimony at pretrial proceedings such as probable-cause hearings, nor does petitioners’ brief discuss whether the same immunity considerations that apply to trial testimony also apply to testimony at probable-cause hearings. We therefore do not decide whether respondent LaHue is entitled to absolute immunity for allegedly false testimony at two probable-cause hearings regarding petitioner Bris-coe. Id. at 328-29 n. 5, 103 S.Ct. at 1112 n. 5. However, the Ninth Circuit recently held that there is “no principled basis for distinguishing between the [adversarial] pretrial proceedings and the trial on the merits in determining whether absolute immunity should be granted to a police officer witness.” Holt v. Castaneda, 832 F.2d 123, 125 (9th Cir.1987); see also, Myers v. Morris, 810 F.2d 1437, 1466 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987); Tripati v. INS, 784 F.2d 345, 348" }, { "docid": "22707082", "title": "", "text": "both cases was predicated squarely on the ground that, in litigation brought under 42 U. S. C. §1983 (1976 ed., Supp. V), all witnesses — police officers as well as lay witnesses — are absolutely immune from civil liability based on their testimony in judicial proceedings. 663 F. 2d 713 (1981). Because of the importance of the immunity question, which has given rise to divergent conclusions in the Courts of Appeals, we granted certiorari. 455 U. S. 1016 (1982). Before confronting the precise question that this case presents — whether § 1983 creates a damages remedy against police officers for their testimony as witnesses — we begin by considering the potential liability of lay witnesses on the one hand, and of judges and prosecutors who perform integral functions in judicial proceedings on the other hand. The unavailability of a damages remedy against both of these categories sheds considerable light on petitioners’ claim that Congress intended police officer witnesses to be treated differently. I There are two reasons why § 1983 does not allow recovery of damages against a private party for testimony in a judicial proceeding. First, § 1983 does not create a remedy for all conduct that may result in violation of “rights, privileges, or immunities secured by the Constitution and laws.” Its reach is limited to actions taken “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . .” It is beyond question that, when a private party gives testimony in open court in a criminal trial, that act is not performed “under color of law.” Second, since 1951, when this Court decided Tenney v. Brandhove, 341 U. S. 367, it has been settled that the all-encompassing language of § 1983, referring to “[e]very person” who, under color of law, deprives another of federal constitutional or statutory rights, is not to be taken literally. “It is by now well settled that the tort liability created by § 1983 cannot be understood in a historical vacuum. . . . One important assumption underlying the Court’s decisions in this area is that" }, { "docid": "1047946", "title": "", "text": "employed. See: Hampton v. Hanrahan, 600 F.2d 600, 630 (7th Cir. 1979), cert. docketed (No. 79-912, December 11, 1979); Beker Phosphate Corporation v. Muirhead, 581 F.2d 1187 (5th Cir.1978) (Per curiam). It must be emphasized that two elements must be pled and proven by a plaintiff to recover under § 1983. First, the plaintiff must prove that the defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” This second element requires that the plaintiff show that the defendant acted “under color of law.” (Citations omitted.) See also Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1431 (10th Cir.1984). We also concur in Anthony’s contention that, contrary to the district court’s finding, Briscoe v. LaHue does not afford immunity for the testimony of the defendants before the Grand Jury. As Anthony points out, this very question was reserved by the Court: The petition for writ of certiorari presents the following question: “Whether a police officer who commits perjury during a state court criminal trial should be granted absolute immunity from civil liability under 42 U.S.C. § 1983.” (Citation omitted.) The petition does not raise the question of immunity for testimony at pretrial proceedings such as probable cause hearings, nor does petitioners’ brief discuss whether the same immunity considerations that apply to trial testimony also apply to testimony at probable cause hearings. We therefore do not decide whether respondent LaHue is entitled to absolute immunity for allegedly false testimony at two probable cause hearings regarding petitioner Briscoe. 460 U.S. 329 n. 5, 103 S.Ct. 1112 n. 5. Baker's assertion that the “numerous determinations of probable cause by the grand jury and state trial judge ... are conclusive evidence of the existence of probable cause” (and hence, no denial of due process) begs the question. Anthony did present evidence upon which a jury could find that Baker’s participation in the investigation and the Grand" }, { "docid": "22707105", "title": "", "text": "civil liability under 42 U. S. C. § 1983.” Pet. for Cert. i. The petition does not raise the question of immunity for testimony at pretrial proceedings such as probable-cause hearings, nor does petitioners’ brief discuss whether the same immunity considerations that apply to trial testimony also apply to testimony at probable-cause hearings. We therefore do not decide whether respondent LaHue is entitled to absolute immunity for allegedly false testimony at two probable-cause hearings regarding petitioner Briscoe. Thus, even though the defective performance of defense counsel may cause the trial process to deprive an accused person of his liberty in an unconstitutional manner, Cuyler v. Sullivan, 446 U. S. 335, 342-345 (1980), the lawyer who may be responsible for the unconstitutional state action does not himself act under color of state law within the meaning of § 1983. Polk County v. Dodson, 454 U. S. 312 (1981). This conclusion is compelled by the character of the office performed by defense counsel. See id., at 317-319; Ferri v. Ackerman, 444 U. S. 193, 204 (1979). It is equally clear that the office of the lay witness who merely discharges his duty to testify truthfully is not performed under color of law within the meaning of § 1983. It is conceivable, however, that nongovernmental witnesses could act “under color of law” by conspiring with the prosecutor or other state officials. See Dennis v. Sparks, 449 U. S. 24, 27-29 (1980); Adickes v. S. H. Kress & Co., 398 U. S. 144, 152 (1970). It is therefore necessary to go beyond the “color of law” analysis to consider whether private witnesses may ever be held liable for damages under § 1983. Nor is this the only piece of 19th-century legislation in which the word “every” may not be given a literal reading. See National Society of Professional Engineers v. United States, 435 U. S. 679, 687-688 (1978). The availability of a common-law action for false accusations of crime, see post, at 350-351, is inapposite because petitioners present only the question of § 1983 liability for false testimony during a state-court criminal trial. See" }, { "docid": "195173", "title": "", "text": "Appellant asserts that the Briscoe Court expressly reserved the question of immunity for witnesses in pretrial proceedings and that the outcome in this case, therefore, is not controlled by Briscoe. Appellant bases his assertion on the following footnote in the Court’s opinion: The petition [for writ of certiorari] does not raise the question of immunity for testimony at pretrial proceedings such as probable-cause hearings, nor does petitioners’ brief discuss whether the same immunity considerations that apply to trial testimony also apply to testimony at probable-cause hearings. We therefore do not decide whether respondent LaHue is entitled to absolute immunity for allegedly false testimony at two probable-cause hearings regarding petitioner Bris-coe. 460 U.S. at 329 n. 5, 103 S.Ct. at 1112 n. 5. We read the Supreme Court’s language as reserving the question of immunity for witnesses at probable-cause hearings in particular, rather than at all pretrial proceedings in general. It is understandable that the Court would defer decision on immunity for witnesses at probable-cause hearings. As Justice Marshall observed in dissent, “the policy considerations applicable to testimony at a probable-cause hear ing differ substantially from those relevant to testimony at a trial. For instance, the absence of cross-examination at probable-cause hearings increases the risk that false testimony will go undetected.” 460 U.S. at 352 n. 10, 103 S.Ct. at 1124 n. 10 (Marshall, J., dissenting). Indeed, one court, citing Justice Marshall’s observations, has already refused to extend the Briscoe holding to immunize witnesses who give perjurious testimony at probable-cause hearings. See Wheeler v. Cosden Oil and Chemical Co., 734 F.2d 254, 261, modified, 744 F.2d 1131 (5th Cir.1984). In contrast, as discussed above, the policy considerations applicable to adversarial pretrial proceedings, such as those held in this case, are identical to the policy considerations relevant to testimony at a trial on the merits. In both settings, the risk that false testimony will go undetected is minimized by submitting the testimony to “the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.”" }, { "docid": "22707104", "title": "", "text": "examiner; § 1983 action), cert. denied, 440 U. S. 930 (1979); Charles v. Wade, 665 F. 2d 661 (CA5 1982) (police officer victim; § 1983 suit), cert. pending, No. 81-1881; Myers v. Bull, 599 F. 2d 863, 866 (CA8) (police officer witness; § 1983 suit), cert. denied, 444 U. S. 901 (1979); Blevins v. Ford, 572 F. 2d 1336 (CA9 1978) (private witnesses and former Assistant U. S. Attorney; action under § 1983 and the Fifth Amendment). But see Briggs v. Goodwin, 186 U. S. App. D. C. 179, 569 F. 2d 10 (1977) (dicta rejecting absolute immunity for government official witness; Bivens action), cert. denied, 437 U. S. 904 (1978); Hilliard v. Williams, 516 F. 2d 1344, 1350 (CA6 1975) (rejecting absolute immunity for agent of state bureau of investigation; § 1983 action), cert. denied sub nom. Clark v. Hilliard, 423 U. S. 1066 (1976). The petition for writ of certiorari presents the following question: “Whether a police officer who commits perjury during a state court criminal trial should be granted absolute immunity from civil liability under 42 U. S. C. § 1983.” Pet. for Cert. i. The petition does not raise the question of immunity for testimony at pretrial proceedings such as probable-cause hearings, nor does petitioners’ brief discuss whether the same immunity considerations that apply to trial testimony also apply to testimony at probable-cause hearings. We therefore do not decide whether respondent LaHue is entitled to absolute immunity for allegedly false testimony at two probable-cause hearings regarding petitioner Briscoe. Thus, even though the defective performance of defense counsel may cause the trial process to deprive an accused person of his liberty in an unconstitutional manner, Cuyler v. Sullivan, 446 U. S. 335, 342-345 (1980), the lawyer who may be responsible for the unconstitutional state action does not himself act under color of state law within the meaning of § 1983. Polk County v. Dodson, 454 U. S. 312 (1981). This conclusion is compelled by the character of the office performed by defense counsel. See id., at 317-319; Ferri v. Ackerman, 444 U. S. 193, 204 (1979). It" } ]

[ { "docid": "14592504", "title": "", "text": "in Bruning v. U.S., [376 U.S. 58, 84 S.Ct. 906, 11 L.Ed.2d 772] (1964) wherein the court held that an individual bankrupt (as opposed to the estate) remains personally liable for post-petition interest on tax claims. This rule has been followed in many later decisions. See: In re Jaylaw Drug, Inc., 621 F.2d 524 (2d Cir.1980); In re Marietta Baptist Tabernacle, 13 B.R. 715 (Bankr.N.D.Ga.1981); and In re Busman, 5 B.R. 332 (Bankr.E.D.N.Y.1980). The foregoing cases clearly establish that interest survives and can be asserted against a debtor personally. In re Turner, 37 B.R. 376, 377 (Bankr.N.D. 1984). See also, U.S. v. River Coal Co., 748 F.2d 1103 (6th Cir.1984); Schafer v. U.S., 353 F.Supp. 677 (D.Kan.1972). The appellant attempts to distinguish Bruning, but to no avail; Bruning is exactly on point and rules in this case. See 3 L. King, ed. Collier on Bankruptcy, II 523.06 (15th ed.1986), pp. 523-32, 523-33. Third, the Court further notes that the Supreme Court has recently ruled that tax debts described in 11 U.S.C. § 523(a) are automatically nondischargeable from bankruptcy. Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 357, n. 4, 93 L.Ed.2d 216 (1986). Further, if the tax debt is nondis-chargeable, then the interest which flows from it is also nondischargeable. Collier, supra, at 523-33. Since this tax debt is properly within the scope of 523(a)(7), it is nondischargeable, and its related post-peti tion interest in also nondischargeable. The Court therefore finds that the debtor is personally liable for the post-petition interest on the IRS’s claim. Therefore it is ORDERED that the Bankruptcy Court’s order granting summary judgment for the IRS and denying summary judgment for the debtor, the Gevings, be, and the same hereby is, affirmed. . The Court notes that the debtors may be confused about the status of post-petition interest on tax debts in bankruptcy proceedings and recommends to them Post-petition Interest on Tax Claims in Bankruptcy Proceedings, 36 Tax Lawyer 793 (1983)." } ]

[ { "docid": "1083413", "title": "", "text": "proof of claim filed in this case. The post-petition interest and penalties claimed in this case are those which accrued after the filing of the petition in the prior case and which were calculated and claimed when the debtors received a discharge therein but had not fully paid their non-dischargeable tax liabilities. Debtors argue it is inherently inequitable for them to pay considerable monies to relieve their tax indebtedness pursuant to 11 U.S.C. § 1322(a)(2) only to have penalties and interest at the conclusion of the Chapter 13 exceed the original claim. The debtors did not receive a discharge for the 1983 FICA and FUTA tax liabilities or for the 1981 income tax liability in their prior case. Section 1328(c)(2) provides that a discharge granted under subsection (b) discharges the debtor from all unsecured debts except any debt of a kind specified in section 523(a). Section 523(a) excepts from discharge those taxes entitled to priority under section 507(a)(7). The taxes asserted on the IRS’s claim are taxes which were entitled to priority in the prior case and which were specifically excepted from discharge. 11 U.S.C. § 507(a)(7). The interest which accrues on these taxes is an integral part of the underlying tax claim and is generally treated the same as the underlying claims. In re Hanna, 872 F.2d 829, 831 (8th Cir.1989). In Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), the Supreme Court stated, “the instant case concerns the debtor’s personal liability for post-petition interest on a debt for taxes which survives bankruptcy to the extent that it is not paid out of the estate.” Id. at 362, 84 S.Ct. at 908. Likewise, this case involves the debtors’ personal liability for post-petition interest and penalties for taxes which survived bankruptcy because they were non-dischargeable and the tax debts were not fully paid out of the estate in the previous case. Bruning, while decided under the Bankruptcy Act, is still applicable under the Code. In re Hanna, 872 F.2d 829 (8th Cir.1989); In re Cline, 100 B.R. 660, 663 (Bankr.W.D.N.Y.1989); In re Woodward, 113" }, { "docid": "16850989", "title": "", "text": "the limited purpose of its verifying that the appropriate credits were given and, if not, amending its judgment to effectuate such credits and reflect their effect on the amount of the post-petition interest remaining due and payable. AFFIRMED and REMANDED with instructions. . . Matter of U.S. Abatement Corp., 79 F.3d 393, 397 (5th Cir.1996). . 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964). . See e.g., In re Hanna, 872 F.2d 829 (8th Cir.1989); In re Burns, 887 F.2d 1541 (11th Cir.1989). The Debtor further contends that Brun-ing establishes that you must look at — i.e., give credit to — what was paid by the estate, something he contends Hanna and Bums \"overjump.” Bruning, 376 U.S. at 362, 84 S.Ct. at 908 (\"But the instant case concerns the debtor’s personal liability for postpetition interest on a debt for taxes which survives bankruptcy to the extent that it is not paid out of the estate.”). .In re Quick, 152 B.R. 909 (Bankr.W.D.Va. 1993). The bankruptcy court noted that “[t]he appropriateness of how the [IRS] determined the amount of interest and penalty stated to be owing ... was left unresolved....” Id. at 910. As such, an order was entered directing the IRS to show its calculations. It was then established that the IRS \"calculated both post-petition interest and failure to pay penalty on the declining principal balance of the unpaid income tax and that the amount sought from the debtors included failure to pay penalties that accrued while the debtors' chapter 13 case was pending.” Id. The court held that \"the debtors [were] not liable for accrued post-petition penalties on their pre-petition tax debt which were incurred while their chapter 13 case was pending.” Id. at 912. . 200 B.R. 734 (Bankr.D.Mass.1996) The bankruptcy court analyzed Code §§ 1129(a)(9)(C) and 1141(d)(2) in concluding that personal liability for interest on nondischargeable taxes does not survive confirmation of the debtor's plan of reorganization. Id. at 739-40. The court’s ruling discharged the post-petition interest that accrued on the nondischarged taxes. Id. at 740. . 192 B.R. 294 (Bankr.D.Mass. 1996), rev’d and vacated," }, { "docid": "13978129", "title": "", "text": "or post-petition interest as part of their claims in the bankruptcy proceeding and cannot collect such interest from the bankruptcy estate. See 11 U.S.C. § 502(b)(2). In Bruning, which was decided prior to the enactment of the Bankruptcy Code, the Court considered the nondischargeability of post-petition interest on a nondischargeable tax debt. The Court held that although post-petition interest on the nondischargeable tax debt could not be paid by the bankruptcy estate, it survived bankruptcy and could be recovered personally from the debtor after the bankruptcy proceedings were complete. See Bruning, 376 U.S. at 361, 84 S.Ct. 906. The Court reasoned that because Congress made the tax debt nondischargeable, post-petition interest on that debt \"would also be nondischargeable because the interest is \"an integral part of a continuing debt.” Id. at 360, 84 S.Ct. 906. The BAP in this case applied the reasoning set forth in Bruning to hold that post-petition interest on nondischargeable student loan debts survives bankruptcy and remains a personal liability of the debtor. . Although we need not decide the issue of whether post-petition interest on a student loan is dischargeable because Great Lakes has waived its right to collect such interest by failing to object to the plan's discharge provision or to appeal the confirmation order, the clear weight of authority appears to support the BAP’s conclusion that post-petition interest on a student loan debt is nondischargeable. Several other circuits have held that Bruning remains good law after the enactment of the Bankruptcy Code. See Johnson v. IRS (In re Johnson), 146 F.3d 252, 260 (5th Cir.1998); Leeper v. Pennsylvania Higher Educ. Assistance Agency, 49 F.3d 98, 101-02 (3d Cir.1995); Fullmer v. United States (In re Fullmer), 962 F.2d 1463, 1468 (10th Cir.1992); In re Burns, 887 F.2d 1541, 1543 (11th Cir.1989); Hanna v. United States (In re Hanna), 872 F.2d 829, 831 (8th Cir.1989). Furthermore, several courts have applied Bruning in the context of student loans to hold that post-petition interest on student loans is non-dischargeable. See Leeper, 49 F.3d at 105; Wagner v. Ohio Student Loan Comm’n (In re Wagner), 200 B.R. 160," }, { "docid": "21574605", "title": "", "text": "HEANEY, Senior Circuit Judge. Ronald Hanna and Marjorie Hanna filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. Among the debts scheduled in their petition were unpaid federal and state income taxes. The bankruptcy court concluded that postpetition interest and postpetition penalties on these taxes were discharged. The United States government appealed to the district court and it affirmed. The government now appeals to this Court. We reverse. POSTPETITION INTEREST The first question raised on appeal is whether postpetition interest may be enforced as a continuing nondischargeable obligation against Chapter 7 debtors subsequent to the liquidation. In a case under the 1950 Bankruptcy Act, the Supreme Court held that postpetition interest on an unpaid tax debt not discharged remains, after bankruptcy, a personal liability of the debtor. Bruning v. United States, 376 U.S. 358, 363, 84 S.Ct. 906, 909, 11 L.Ed.2d 772 (1964). The bankruptcy court, in this instance, determined that Bruning was inapplicable under the 1978 Bankruptcy Code and that postpetition interest on a tax liability is dischargeable, relying on the language of 11 U.S.C. § 502(b)(2), the “fresh start” policy of the bankruptcy laws and In re Frost, 19 B.R. 804, 810 (Bkrtcy D.Kan.1982), rev’d on other grounds, 47 B.R. 961 (D.Kan.1985). Section 727 of the Bankruptcy Code governs discharge in a Chapter 7 case. In general, that section discharges a debtor from all debts that arose before the petition was filed, except those debts that are specified in section 523. As relevant here, section 523(a)(1) excepts from discharge taxes that are entitled to priority under section 507(a)(7) whether or not a claim for such tax is filed or allowed. The taxes involved in this case were admittedly entitled to priority and, thus, rendered nondis-chargeable. The interest that accrues on such is an integral part of the underlying tax claim and is generally treated the same as the underlying claim. On the other hand, section 502(b)(2) specifies that unma-tured interest, including postpetition interest on a tax liability, is not to be allowed against the bankruptcy estate. The general rule “disallowing” the payment of unmatured" }, { "docid": "6621627", "title": "", "text": "the bankruptcy court to determine, inter alia, her liability for the post-petition interest and the fraud penalties. She contended that her discharge in the Chapter 7 proceeding had terminated her liability on the post-petition interest and the penalties. The IRS contested the proposition that the prior proceeding discharged her tax obligations. Section 727 of the Bankruptcy Code provides for discharge of “all debts that arose before the date of the order for relief under [Chapter 7], and any liability on a claim that is determined under section 502 of this title as if such claim had arisen before the commencement of the case,” 11 U.S.C. § 727(b) (1982), excepting those types of debts enumerated in section 523(a) as non-dischargeable. While the parties agreed that the underlying unpaid taxes were not discharged in the Chapter 7 proceeding, they disagree on the status of the post-petition interest and the fraud penalties. Regarding the post-petition interest, Burns conceded that prior to the passage of the Bankruptcy Code the Supreme Court, in Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), held that post-petition interest on a nondischargeable tax debt could be recovered in a later action against the debtor personally. Burns argued, however, that the fresh start policy of the Bankruptcy Code abrogated the Bruning rule. Regarding the fraud penalties, Burns contended that the plain language of section 523(a)(7)(B) provides discharge to penalties relating to a transaction or event occurring more than three years prior to the filing of a bankruptcy petition. Since her tax returns for 1977 through 1979 are transactions or events occurring more than three years prior to her 1984 Chapter 7 filing, Burns reasoned that the penalties associated therewith are discharged. The bankruptcy court accepted Burns’ arguments. Her liabilities for the post-petition interest and penalties were ordered discharged. On appeal, the district court affirmed the bankruptcy court’s ruling. From the adverse ruling of the district court, the IRS initiated this appeal. Because the issues presented concern questions of law, review is plenary. DISCUSSION We must determine if the nondischarge-ability of Burns’ tax liabilities also" }, { "docid": "22912223", "title": "", "text": "survived the enactment. See United States v. Ron Pair Enter., Inc., 489 U.S. 235, 244-45, 109 S.Ct. 1026, 1032, 103 L.Ed.2d 290 (1989); Rodriguez v. United States, 480 U.S. 522, 525, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (per curiam). As the Eighth Circuit aptly stated: Taken together, sections 502 and 523 simply demonstrate Congress’ intent to codify the general principle that applied under Bruning. Postpetition interest is disallowed against the bankruptcy estate under section 502. Priority tax claims remain nondisehargeable for individual debtors _Thus, postpetition interest is non-dischargeable and the [debtors] remain lia ble. for that interest subsequent to the bankruptcy proceedings. Hanna v. United States (In re Hanna), 872 F.2d 829, 831 (8th Cir.1989). Additionally, although the Ninth Circuit has not addressed whether the Bruning rule continues to apply under the Code, five circuit courts have held that Bruning remains good law under the Code. See Leeper v. Pennsylvania Higher Educ. Assistance Agency (In re Leeper), 49 F.3d 98, 101-02 (3d Cir.1995); Fullmer v. United States (In re Fullmer), 962 F.2d 1463, 1468 (10th Cir. 1992); Burns v. United States (In re Burns), 887 F.2d 1541, 1543 (11th Cir.1989); Hanna, 872 F.2d 829, 831 (8th Cir.1989); and Bradley v. United States, 936 F.2d 707, 709-10 n. 3 (2d Cir.1991) (stating in dictum that the weight of authority supports the view that a debtor is personally liable for postpetition interest on unpaid taxes). Accordingly, we join the unanimous circuit court authority that has addressed this issue and conclude that Bmning retains its vitality under the Bankruptcy Code. Furthermore, the overwhelming majority of bankruptcy courts have extended the Supreme Court’s Bmning principle to apply to postpetition interest on nondischargeable student loans. See Wagner v. Ohio Student Loan Comm’n (In re Wagner), 200 B.R. 160, 163 (Bankr.N.D.Ohio 1996); In re Sullivan, 195 B.R. 649, 652 (Bankr.W.D.Tex.1996); Branch v. Unipac/Nebhelp (In re Branch), 175 B.R. 732 (Bankr.D.Neb.1994); In re Shelbayah, 165 B.R. 332, 337 (Bankr.N.D.Ga.1994); Ridder v. Great Lakes Higher Educ. Corp. (In re Ridder), 171 B.R. 345, 347-48 (Bankr.W.D.Wis.1994); and Jordan v. Colorado Student Loan Program (In re Jordan), 146" }, { "docid": "6621629", "title": "", "text": "exempts from discharge the post-petition interest and fraud penalties assessed on those non-dischargeable liabilities. These issues of statutory interpretation arise as ones of first impression in this Circuit. The issues presented are discussed individually. Post-Petition Interest The nondisehargeability of interest accruing after a prior bankruptcy filing on nondischargeable tax liabilities was firmly established prior to the enactment of the Bankruptcy Code. See Bruning v. United States, 376 U.S. 358, 360, 84 S.Ct. 906, 907-08, 11 L.Ed.2d 772 (1964). Subsequent to the Code, however, courts have split over the continuing viability of Bruning. Compare, e.g., In re Hanna, 872 F.2d 829, 830-31 (8th Cir.1989), Geving v. United States, 93 B.R. 742, 743-44 (D.Wyo.1986), In re Cline, 100 B.R. 660, 662-63 (Bankr.W.D.N.Y.1989) and In re Mitchell, 93 B.R. 615, 617-18 (Bankr.W.D.Tenn.1988) (Congress intended to codify principle enunciated in Bruning concerning nondischarge-ability of post-petition interest) with In re Reich, 66 B.R. 554, 557-58 (Bankr.D.Colo.1986) and In re Frost, 19 B.R. 804, 810 (Bankr.D.Kan.1982) (“fresh start” policy of Bankruptcy Code undermined rationale of Bruning), vacated on relevant ground as unripe, 47 B.R. 961 ,(D.Kan.1985). Congress is presumed to act with full awareness of the well-established judicial interpretation on the issue of post-petition interest, see, e.g., Rodriguez v. United States, 480 U.S. 522, 525, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (per curiam), and, when statutory language permits interpretation, pre-Code interpretations are presumed to have survived the enactment of the Bankruptcy Code unless Congress has expressed an intention to change the interpretation of judicially created concepts in enacting the Code, see United States v. Ron Pair Enterprises, Inc., 489 U.S.-, 109 S.Ct. 1026, 1031-33, 103 L.Ed.2d 290 (1989). In Hanna, the Eighth Circuit thoroughly analyzed congressional intent regarding the Bruning rule, concluding that Congress did not intend to change the pre-Code law. See 872 F.2d at 830-31. We concur in the Hanna analysis and, in lieu of filling the tomes that record appellate opinions with a repeat of its proofs, we adopt that analysis as our own. Inasmuch as we conclude that the post-petition interest on a nondischargeable tax debt is non-dischargeable, the rulings" }, { "docid": "16850995", "title": "", "text": "(10th Cir.1992); Burns v. United States, 887 F.2d 1541, 1543 (11th Cir.1989); Hanna, 872 F.2d 829, 831 (8th Cir.1989); Bradley v. United States, 936 F.2d 707, 709-10 n. 3 (2d Cir.1991) (stating in dictum that the weight of authority supports the view that a debtor is personally liable for post-petition interest on unpaid taxes). But see In re Reich, 66 B.R. 554, 557-58 (Bankr.D.Colo.1986), rev’d, 107 B.R. 299 (D.Colo.1989) and In re Frost, 19 B.R. 804, 810 (Bankr.D.Kan.1982) (stating that “[t]he notion that any creditor can show up at the debtors' doorstep after discharge is granted and attempt to collect a discharged debt is ... offensive to the concept of the debtor’s fresh start....” and concluding that \"the IRS cannot collect ... post-petition interest from the debtors after receipt of a discharge.”), vacated on relevant ground as unripe, 47 B.R. 961 (D.Kan.1985). . Leeper, 49 F.3d at 102 (3d Cir.1995). . Hanna, 872 F.2d at 831. . Heisson, 217 B.R. at 4 (relying on a number of Bankruptcy Act cases, including: United States v. River Coal Co., Inc., 748 F.2d 1103, 1106-07 (6th Cir.1984) (extending Bruning to gap interest — i.e., post-petition, pre-confirmation interest — on non-dischargeable tax debts in Chapter 11 proceedings where the tax claim was paid in full under the plan); In re laylaw Drug, Inc., 621 F.2d 524, 528 (2d Cir.1980) (same); Hugh H. Eby Co. v. United States, 456 F.2d 923, 925 (3d Cir.1972) (same); and In re Johnson Electrical Corp., 442 F.2d 281, 283-84 (2nd Cir.1971) (same)) (also relying on a number of decisions under the Code, including: Leeper, 49 F.3d at 104; Fullmer, 962 F.2d at 1468; Burns, 887 F.2d at 1543; Hanna, 872 F.2d at 831; In re Willauer, 192 B.R. 796, 801 n. 4 (Bankr.D.Mass.1996); JAS Enters., 143 B.R. 718, 719 (Bankr.D.Neb.1992); and In re Fox, 130 B.R. 571, 575 (Bankr.W.D.Wash.1991). But see In re Wasson, 152 B.R. 639, 642 (Bankr.D.N.M.1993)). . Id. (relying on River Coal, 748 F.2d at 1107; Eby, 456 F.2d at 925 (\"That the underlying taxes were later paid in full here does not affect the fact" }, { "docid": "18534199", "title": "", "text": "nondischargeable, Pierce Builders can recover pre- and post-petition prejudgment interest. Conclusion For the reasons stated above, the decision of the bankruptcy court is affirmed, but the award of attorneys’ fees is stricken. . Mr. Pyritz' wife, Catherine Pyritz, filed for bankruptcy with her husband. She was a co-defendant in Pierce Builders’ action, but was eventually dismissed. . The bankruptcy court dismissed Pierce Builders' claim under section 523(a)(2)(A). . In addition, Mr. Pyritz argues that the uncon-tradicted evidence showed that Mr. Pyritz' actions were authorized or ratified by an agent of J.E. Pierce Builders, Inc., namely the office manager, and that certain checks should not have been included in the damages because there was no proof at all that said checks were used exclusively for the benefit of Mr. Pyritz. The evidence supports the bankruptcy judge's conclusions. Mr. Pyritz also argues that he was deprived of discovery but since he asks this Court to compel production only in the event of remand, the issue is moot. . The record before me does not indicate when Mr. Pyritz filed his bankruptcy petition. . In re Levinson, 58 B.R. 831, 837 (N.D.Ill.1986), after finding a debt nondischargeable under section 523(a)(4), the bankruptcy court awarded the creditor post-petition interest, citing Bruning v. United States, 376 U.S. 358, 360, 84 S.Ct. 906, 907, 11 L.Ed.2d 772 (1964) (allowing post-petition interest on nondischargeable tax liability under section 523(a)(1)). The Seventh Circuit affirmed Levinson without addressing the appropriateness of post-petition interest because the creditor did not raise the issue. Klingman v. Levinson, 831 F.2d 1292, 1297 n. 4 (7th Cir.1987). See also In re Levitsky, 137 B.R. 288, 291-92 (E.D.Wis.1992) (post-petition prejudgment interest allowed based on state law where debt nondischargeable under section 523(a)(2)(A)); In re Couch, 154 B.R. 511, 514 (S.D.Ind.1992) (post-petition prejudgment interest allowed under section 523(a)(6)). The overwhelming consensus is that notwithstanding some statutory language to the contrary, see 11 U.S.C. § 502(b)(2), Bruning remains viable. See, e.g., In re Hanna, 872 F.2d 829, 830-31 (8th Cir.1989); In re Burns, 887 F.2d 1541, 1543 (11th Cir.1989). Although all well-reasoned cases allowing post-petition interest address" }, { "docid": "13520860", "title": "", "text": "order affirming the bankruptcy court’s decision, essentially adopting the reasoning of the bankruptcy court. The debtors appeal. We have jurisdiction over the debtors’ appeal pursuant to 28 U.S.C. § 158(d) (1988). Because the only issues presented in this appeal involve the proper interpretation of the Bankruptcy Code, our review is plenary. See In re Roth American, Inc., 975 F.2d 949, 952 (3d Cir.1992); see also In re Abbotts Dairies, 788 F.2d 143, 147 (3d Cir.1986). II. DISCUSSION A. Under the Bankruptcy Code, creditors are not entitled to include unmatured (or “post-petition”) interest as part of their claims in the bankruptcy proceedings. See 11 U.S.C. § 502(b)(2) (1988); see also Sexton v. Dreyfus, 219 U.S. 389, 344, 31 S.Ct. 256, 257, 55 L.Ed. 244 (1911) (noting that this rule is derived from a fundamental principle of the English bankruptcy system). This longstanding rule is designed to assure that no creditor gains an advantage or suffers a loss due to the delays inherent in liquidation and distribution of the estate. American Iron & Steel Mfg. Co. v. Seaboard Air Line Ry., 233 U.S. 261, 266, 34 S.Ct. 502, 504, 58 L.Ed. 949 (1914); see also In re Hanna, 872 F.2d 829, 830-31 (8th Cir.1989). The prohibition against claims for post-petition interest generally applies even in instances where the claims are based upon underlying debts that are not dischargeable. See, e.g., City of New York v. Soper, 336 U.S. 328, 337-38, 69 S.Ct. 554, 559-60, 93 L.Ed. 710 (1949); see also In re JAS Enterprises, Inc., 143 B.R. 718, 719 (Bankr.D.Neb.1992). In Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), the precedent of most significance for the issue before us, the Supreme Court distinguished between denial of post-petition interest against the bankruptcy estate on a nondischargeable debt and the accrual of interest on a nondisehargeable debt during the pendency of the bankruptcy to be collected from the debtor after the bankruptcy proceeding is completed. Id. at 362-63, 84 S.Ct. at 908-09. In Bruning, a taxpayer who had been discharged from bankruptcy challenged the IRS’s contention that it" }, { "docid": "18534200", "title": "", "text": "Pyritz filed his bankruptcy petition. . In re Levinson, 58 B.R. 831, 837 (N.D.Ill.1986), after finding a debt nondischargeable under section 523(a)(4), the bankruptcy court awarded the creditor post-petition interest, citing Bruning v. United States, 376 U.S. 358, 360, 84 S.Ct. 906, 907, 11 L.Ed.2d 772 (1964) (allowing post-petition interest on nondischargeable tax liability under section 523(a)(1)). The Seventh Circuit affirmed Levinson without addressing the appropriateness of post-petition interest because the creditor did not raise the issue. Klingman v. Levinson, 831 F.2d 1292, 1297 n. 4 (7th Cir.1987). See also In re Levitsky, 137 B.R. 288, 291-92 (E.D.Wis.1992) (post-petition prejudgment interest allowed based on state law where debt nondischargeable under section 523(a)(2)(A)); In re Couch, 154 B.R. 511, 514 (S.D.Ind.1992) (post-petition prejudgment interest allowed under section 523(a)(6)). The overwhelming consensus is that notwithstanding some statutory language to the contrary, see 11 U.S.C. § 502(b)(2), Bruning remains viable. See, e.g., In re Hanna, 872 F.2d 829, 830-31 (8th Cir.1989); In re Burns, 887 F.2d 1541, 1543 (11th Cir.1989). Although all well-reasoned cases allowing post-petition interest address section 523(a)(1), their rationale should be generalizable to section 523(a)(4): \"[t]he general rule 'disallowing' the payment of unmatured interest out of the assets of the bankruptcy estate is a rule of administrative convenience and fairness to all creditors_ [T]he[se] concerns ... are not present when a court makes a determination of whether to discharge a claim.” In re Hanna, 872 F.2d at 830-31." }, { "docid": "13520862", "title": "", "text": "was entitled to collect post-petition interest on a nondischargeable tax debt after the conclusion of the taxpayer’s bankruptcy. The taxpayer based his argument on the traditional rule barring creditors from claiming post-petition interest from the bankruptcy estate, a rule now codified in 11 U.S.C. § 502(b)(2). The Bruning Court, in a unanimous opinion authored by Chief Justice Warren, upheld the IRS’s position. The Court’s reasoning is directly applicable to the issue before us. Because Congress made the tax debt nondisehargeable, it “clearly intended that personal liability for unpaid tax debts survive bankruptcy.” Bruning, 376 U.S. at 361, 84 S.Ct. at 908. The Court then stated that it did not have any “reason to believe that Congress had a different intention with regard to personal liability for the interest on such debts.” Id. The. Court reasoned that “[i]n most situations, interest is considered to be the cost of the use of the amounts owing a creditor and an incentive to prompt repayment and, thus, an integral part of a continuing debt.” Id. at 360, 84 S.Ct. at 908. Thus, the Court concluded, if a tax debt was nondisehargeable, post-petition interest on that debt would also be nondisehargeable. Id. at 363, 84 S.Ct. at 909. The Court held that the policy reasons for denying post-petition interest from the bankruptcy estate, which it described as “the avoidance of unfairness as between creditors” and “the avoidance of administrative inconvenience,” were not applicable to an action brought against the debtor personally. Id. at 362-63, 84 S.Ct. at 908-09. While Bruning was decided prior to the enactment of the Bankruptcy Code, it has been applied by other courts of appeals to cases arising under the Code. See Burns v. United States (In re Burns), 887 F.2d 1541, 1543 (11th Cir.1989) (specifically addressing the issue of whether the Bruning holding survived the enactment of the Bankruptcy Code of 1978 and answering affirmatively); In re Hanna, 872 F.2d at 830-31 (same); see also Bradley v. United States, 936 F.2d 707, 709-10 n. 3 (2d Cir.1991) (declining to reach the issue, but acknowledging that “the weight of authority” permits" }, { "docid": "6621630", "title": "", "text": "unripe, 47 B.R. 961 ,(D.Kan.1985). Congress is presumed to act with full awareness of the well-established judicial interpretation on the issue of post-petition interest, see, e.g., Rodriguez v. United States, 480 U.S. 522, 525, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (per curiam), and, when statutory language permits interpretation, pre-Code interpretations are presumed to have survived the enactment of the Bankruptcy Code unless Congress has expressed an intention to change the interpretation of judicially created concepts in enacting the Code, see United States v. Ron Pair Enterprises, Inc., 489 U.S.-, 109 S.Ct. 1026, 1031-33, 103 L.Ed.2d 290 (1989). In Hanna, the Eighth Circuit thoroughly analyzed congressional intent regarding the Bruning rule, concluding that Congress did not intend to change the pre-Code law. See 872 F.2d at 830-31. We concur in the Hanna analysis and, in lieu of filling the tomes that record appellate opinions with a repeat of its proofs, we adopt that analysis as our own. Inasmuch as we conclude that the post-petition interest on a nondischargeable tax debt is non-dischargeable, the rulings of the courts below must be reversed. Tax Penalties Pre-Code law was silent on the dis-chargeability of liability for tax penalties. See Plumb, The Tax Recommendations of the Commission on Bankruptcy Laws— Priority and Dischargeability of Tax Claims, 59 Cornell L.Rev. 991, 1058 (1974). Courts generally took the position that the penalties survived a discharge in bankruptcy, resting either on the theory that the penalties constituted a nonprovable debt or on the theory that the penalties were to be treated in all respects as taxes because they were assessed and collected in the same manner as taxes. See id. The second of these theories linked the discharge-ability of the penalty with the underlying tax liability. Id. The IRS pursued tax penalties in accord with the second theory during the ten years immediately preceding enactment of the Bankruptcy Code. See Rev.Rul. 68-574, 1968-2 C.B. 595, 597 (su-perceding Rev.Rul. 62-96,1962-1 C.B. 308). The Commission on Bankruptcy Laws had the intention of clarifying and rationalizing the dischargeability status of various penalties, including tax penalties, when it proposed a" }, { "docid": "1083414", "title": "", "text": "case and which were specifically excepted from discharge. 11 U.S.C. § 507(a)(7). The interest which accrues on these taxes is an integral part of the underlying tax claim and is generally treated the same as the underlying claims. In re Hanna, 872 F.2d 829, 831 (8th Cir.1989). In Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), the Supreme Court stated, “the instant case concerns the debtor’s personal liability for post-petition interest on a debt for taxes which survives bankruptcy to the extent that it is not paid out of the estate.” Id. at 362, 84 S.Ct. at 908. Likewise, this case involves the debtors’ personal liability for post-petition interest and penalties for taxes which survived bankruptcy because they were non-dischargeable and the tax debts were not fully paid out of the estate in the previous case. Bruning, while decided under the Bankruptcy Act, is still applicable under the Code. In re Hanna, 872 F.2d 829 (8th Cir.1989); In re Cline, 100 B.R. 660, 663 (Bankr.W.D.N.Y.1989); In re Woodward, 113 B.R. 680, 684 (Bankr.D.Or.1990). In Bruning, which is controlling in this matter, the Court held that post-petition interest on an unpaid tax debt is not discharged and remains a personal liability of the debtor. The penalties attributable to the underlying tax are non-dischargeable because the underlying tax liability is non-dischargeable. In re Hanna, 872 F.2d 829, 832 (8th Cir.1989); 3 Collier on Bankruptcy 523.06 (15th ed.). See In re Marion Auto Parts, etc., 12 B.R. 663 (W.D.Va.1980). For the reasons stated, the claim of IRS is allowed as filed. So ORDERED." }, { "docid": "13520863", "title": "", "text": "at 908. Thus, the Court concluded, if a tax debt was nondisehargeable, post-petition interest on that debt would also be nondisehargeable. Id. at 363, 84 S.Ct. at 909. The Court held that the policy reasons for denying post-petition interest from the bankruptcy estate, which it described as “the avoidance of unfairness as between creditors” and “the avoidance of administrative inconvenience,” were not applicable to an action brought against the debtor personally. Id. at 362-63, 84 S.Ct. at 908-09. While Bruning was decided prior to the enactment of the Bankruptcy Code, it has been applied by other courts of appeals to cases arising under the Code. See Burns v. United States (In re Burns), 887 F.2d 1541, 1543 (11th Cir.1989) (specifically addressing the issue of whether the Bruning holding survived the enactment of the Bankruptcy Code of 1978 and answering affirmatively); In re Hanna, 872 F.2d at 830-31 (same); see also Bradley v. United States, 936 F.2d 707, 709-10 n. 3 (2d Cir.1991) (declining to reach the issue, but acknowledging that “the weight of authority” permits accrual of interest on nondisehargeable tax debts during a bankruptcy); Paulson v. United States (In re Paulson), 152 B.R. 46, 49-51 (Bankr. W.D.Pa.1992) (concluding that the Bruning rule applies to actions arising under the Bankruptcy Code). In addition, while Bruning involved the accrual of post-petition interest on a nondis-chargeable tax debt, its reasoning hás been applied to other types of nondisehargeable debts. See In re Fullmer, 962 F.2d 1463, 1468 (10th Cir.1992) (applying Bruning to post-petition interest on a nondisehargeable tax penalty); In re Burns, 887 F.2d at 1543 (same); In re Brace, 131 B.R. 612, 613-14 (Bankr.W.D.Mich.1991) (holding that post-pe tition interest may accrue on a debt that was nondischargeable under 11 U.S.C. § 523(a)(2) because it arose from fraudulent misrepresentations); In re Kellar, 125 B.R. 716, 720-21 (Bankr.N.D.N.Y.1989) (same). The Bruning decision therefore stands for the general proposition that creditors may accrue as to the debtor personally post-petition interest on nondischargeable debts while a bankruptcy is pending. The bankruptcy court and the district court relied primarily upon this proposition in granting and affirming" }, { "docid": "13520861", "title": "", "text": "Seaboard Air Line Ry., 233 U.S. 261, 266, 34 S.Ct. 502, 504, 58 L.Ed. 949 (1914); see also In re Hanna, 872 F.2d 829, 830-31 (8th Cir.1989). The prohibition against claims for post-petition interest generally applies even in instances where the claims are based upon underlying debts that are not dischargeable. See, e.g., City of New York v. Soper, 336 U.S. 328, 337-38, 69 S.Ct. 554, 559-60, 93 L.Ed. 710 (1949); see also In re JAS Enterprises, Inc., 143 B.R. 718, 719 (Bankr.D.Neb.1992). In Bruning v. United States, 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964), the precedent of most significance for the issue before us, the Supreme Court distinguished between denial of post-petition interest against the bankruptcy estate on a nondischargeable debt and the accrual of interest on a nondisehargeable debt during the pendency of the bankruptcy to be collected from the debtor after the bankruptcy proceeding is completed. Id. at 362-63, 84 S.Ct. at 908-09. In Bruning, a taxpayer who had been discharged from bankruptcy challenged the IRS’s contention that it was entitled to collect post-petition interest on a nondischargeable tax debt after the conclusion of the taxpayer’s bankruptcy. The taxpayer based his argument on the traditional rule barring creditors from claiming post-petition interest from the bankruptcy estate, a rule now codified in 11 U.S.C. § 502(b)(2). The Bruning Court, in a unanimous opinion authored by Chief Justice Warren, upheld the IRS’s position. The Court’s reasoning is directly applicable to the issue before us. Because Congress made the tax debt nondisehargeable, it “clearly intended that personal liability for unpaid tax debts survive bankruptcy.” Bruning, 376 U.S. at 361, 84 S.Ct. at 908. The Court then stated that it did not have any “reason to believe that Congress had a different intention with regard to personal liability for the interest on such debts.” Id. The. Court reasoned that “[i]n most situations, interest is considered to be the cost of the use of the amounts owing a creditor and an incentive to prompt repayment and, thus, an integral part of a continuing debt.” Id. at 360, 84 S.Ct." }, { "docid": "6621628", "title": "", "text": "84 S.Ct. 906, 11 L.Ed.2d 772 (1964), held that post-petition interest on a nondischargeable tax debt could be recovered in a later action against the debtor personally. Burns argued, however, that the fresh start policy of the Bankruptcy Code abrogated the Bruning rule. Regarding the fraud penalties, Burns contended that the plain language of section 523(a)(7)(B) provides discharge to penalties relating to a transaction or event occurring more than three years prior to the filing of a bankruptcy petition. Since her tax returns for 1977 through 1979 are transactions or events occurring more than three years prior to her 1984 Chapter 7 filing, Burns reasoned that the penalties associated therewith are discharged. The bankruptcy court accepted Burns’ arguments. Her liabilities for the post-petition interest and penalties were ordered discharged. On appeal, the district court affirmed the bankruptcy court’s ruling. From the adverse ruling of the district court, the IRS initiated this appeal. Because the issues presented concern questions of law, review is plenary. DISCUSSION We must determine if the nondischarge-ability of Burns’ tax liabilities also exempts from discharge the post-petition interest and fraud penalties assessed on those non-dischargeable liabilities. These issues of statutory interpretation arise as ones of first impression in this Circuit. The issues presented are discussed individually. Post-Petition Interest The nondisehargeability of interest accruing after a prior bankruptcy filing on nondischargeable tax liabilities was firmly established prior to the enactment of the Bankruptcy Code. See Bruning v. United States, 376 U.S. 358, 360, 84 S.Ct. 906, 907-08, 11 L.Ed.2d 772 (1964). Subsequent to the Code, however, courts have split over the continuing viability of Bruning. Compare, e.g., In re Hanna, 872 F.2d 829, 830-31 (8th Cir.1989), Geving v. United States, 93 B.R. 742, 743-44 (D.Wyo.1986), In re Cline, 100 B.R. 660, 662-63 (Bankr.W.D.N.Y.1989) and In re Mitchell, 93 B.R. 615, 617-18 (Bankr.W.D.Tenn.1988) (Congress intended to codify principle enunciated in Bruning concerning nondischarge-ability of post-petition interest) with In re Reich, 66 B.R. 554, 557-58 (Bankr.D.Colo.1986) and In re Frost, 19 B.R. 804, 810 (Bankr.D.Kan.1982) (“fresh start” policy of Bankruptcy Code undermined rationale of Bruning), vacated on relevant ground as" }, { "docid": "22912222", "title": "", "text": "debt, and the creditor’s right to recover postpetition interest on a nondis-chargeable debt from the debtor personally after the discharge has been entered. Id. at 362-63, 84 S.Ct. at 908-09. The Court also recognized that the reasons for denying post-petition interest as a claim against the bankruptcy estate, “the avoidance of unfairness as between competing creditors and the avoidance of administrative inconvenience,” are inapplicable to an action brought against the debtor personally. Id. Here, the bankruptcy court erroneously held that Bruning was inapplicable to the. instant case because Bruning was decided under the Bankruptcy Act and is distinguishable because the “allowed” portion of the nondisehargeable debt was “paid in full” through the bankruptcy estate, whereas in Bruning, only part of the underlying debt was paid. This conclusion is not supported by principles of statutory construction or stare decisis. Unless Congress expressly manifests its intent to change well-established judicial interpretation of the bankruptcy laws as they existed prior to enactment of the Bankruptcy Code in 1978, we must presume that pre-Code interpretations of the Act have survived the enactment. See United States v. Ron Pair Enter., Inc., 489 U.S. 235, 244-45, 109 S.Ct. 1026, 1032, 103 L.Ed.2d 290 (1989); Rodriguez v. United States, 480 U.S. 522, 525, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (per curiam). As the Eighth Circuit aptly stated: Taken together, sections 502 and 523 simply demonstrate Congress’ intent to codify the general principle that applied under Bruning. Postpetition interest is disallowed against the bankruptcy estate under section 502. Priority tax claims remain nondisehargeable for individual debtors _Thus, postpetition interest is non-dischargeable and the [debtors] remain lia ble. for that interest subsequent to the bankruptcy proceedings. Hanna v. United States (In re Hanna), 872 F.2d 829, 831 (8th Cir.1989). Additionally, although the Ninth Circuit has not addressed whether the Bruning rule continues to apply under the Code, five circuit courts have held that Bruning remains good law under the Code. See Leeper v. Pennsylvania Higher Educ. Assistance Agency (In re Leeper), 49 F.3d 98, 101-02 (3d Cir.1995); Fullmer v. United States (In re Fullmer), 962 F.2d 1463," }, { "docid": "4798718", "title": "", "text": "the allowance or disallowance of claims is unrelated to the discharge-ability of those claims under section 523. By disallowing a claim for unmatured interest, section 502(b)(2) implements a policy of fairness among unsecured creditors; it is unnecessary to the implementation of that policy that a claim for unmatured interest be dis-chargeable. The policy of collecting nondis-chargeable educational loans cannot be served to its fullest extent without declaring unmatured interest on such loans nondis-chargeable. Almost all courts that have considered the issue presented have concluded that the dis-allowance of postpetition interest has no effect on the dischargeability of a claim for, and an individual’s future liability for, such interest. Bruning v. U.S., 376 U.S. 358, 84 S.Ct. 906, 11 L.Ed.2d 772 (1964); Hanna v. U.S. (In re Hanna), 872 F.2d 829 (8th Cir.1989); Burns v. United States (In re Burns), 887 F.2d 1541 (11th Cir.1989); Jordan v. Colorado Student Loan Program (In re Jordan), 146 B.R. 31 (D.Colo.1992) (district court affirmed the bankruptcy court’s order refusing to confirm a Chapter 13 plan that provided for the tolling of accrued interest on the student loans and for the discharge of that interest); Members Credit Union v. Kellar (In re Kellar), 125 B.R. 716 (Bankr.N.D.N.Y.1989); Cline v. IRS (In re Cline), 100 B.R. 660 (Bankr.W.D.N.Y.1989). The foregoing eases and several others dealing with this issue decided after the enactment of the Bankruptcy Code rely heavily on the pre-Code decision of the Supreme Court in Bruning. In Bruning, the issue was whether postpe-tition interest on nondischargeable taxes was dischargeable. The Supreme Court observed that the policy underlying the disal-lowance of unmatured interest did not conflict with a rule that such interest was non-dischargeable. The Court focused on the logic of providing for the collection of interest on a nondischargeable debt, stating: In most situations, interest is considered to be the cost of the use of the amounts owing a creditor and an incentive to prompt repayment and, thus, an integral part of a continuing debt. Interest on a tax debt would seem to fit that description. Thus, logic and reason indicate that post-petition interest" }, { "docid": "15890920", "title": "", "text": "on evidence outside the parties’ agreement. See, e.g., Pengo, 962 F.2d at 546; In re Hidden Lake Ltd. Partnership, 247 B.R. 722, 730 (Bankr.S.D.Ohio 2000); Brown v. Sayyah (In re ICH Corp.), 230 B.R. 88, 93-94 (N.D.Tex.1999). Where the specific characteristics of a transaction create uncertainty as to whether a claim includes unmatured interest, federal courts do not base their decisions on economic theories of interest. Instead, they evaluate the transaction in light of the principles that underlie Section 502(b)(2) and the policies that flow throughout the Bankruptcy Code. Cf. Vanston, 329 U.S. at 165, 67 S.Ct. at 241 (“It is manifest that the touchstone of each decision on allowance of interest in bankruptcy ... has been a balance of equities between creditor and creditor or between creditors and the debtor”). For example, cases applying Section 502(b)(2) often turn on whether allowance or disallowance will contravene bankruptcy policy, unfairly prejudice other creditors or provide a windfall to the debtor. LTV Corp. v. Valley Fidelity Bank & Trust Co. (In re Chateaugay Corp.), 961 F.2d 378, 382-83 (2d Cir.1992) (unmatured interest not found where disallowance would undermine bankruptcy policy of encouraging consensual out-of-court workouts); Pengo, 962 F.2d at 549 (same); Hanna v. United States (In re Hanna), 872 F.2d 829, 830-32 (8th Cir.1989) (refusing to classify post-petition penalties on nondischargeable tax debts as unmatured interest because disallowance would not further the policies that underpin Section 502(b)(2)); Mt. Rushmore Hotel Corp. v. Commerce Bank (In re Mt. Rushmore Hotel Corp.), 146 B.R. 33, 36 (Bankr.D.Kan.1992) (refusing to disallow difference between the face amount of bonds and price paid by third-party transferees because disallowance would impede creditor’s ability to sell bonds and provide windfall to bankruptcy debtor); In re Skyler Ridge, 80 B.R. 500, 508 (Bankr.C.D.Cal.1987) (re fusing to disallow as unmatured interest claim for liquidated damages under mortgage contract in part because disallowance would further no bankruptcy policy); cf. Bruning v. United States, 376 U.S. 358, 363, 84 S.Ct. 906, 909, 11 L.Ed.2d 772 (1964) (holding that post-petition interest on nondischargeable tax debt remained a personal liability of the debtor after bankruptcy," } ]

[ { "docid": "22636727", "title": "", "text": "proportions. The voluntary plan of liquidation was formally approved four days after the petitioners had filed their complaint. However, the three liquidators had been nominated prior to the filing of the complaint, and their election had been a foregone conclusion. Voluntary liquidation is authorized bj' Ill. Rev. Stat., e. 32, Art. 9. 15 U. S. C. §78e (a) (10). 15 TJ. S. C. §78j (b). 17 CFR § 240.10b-5. “2. When used in this title, unless the context otherwise requires— “(1) The term ‘security’ means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of int'erest or partieipation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a ‘security’. . . .” 48 Stat. 905. S. E. C. v. United Benefit Life Ins. Co., 387 U. S. 202 (1967); 8. E. C. v. Variable Annuity Life Ins. Co., 359 U. S. 65 (1959); S. E. C. v. W. J. Howey Co., 328 U. S. 293 (1946); and S. E. C. v. C. M. Joiner Corp., 320 U. S. 344 (1943). The Securities Exchange Act was a product of a lengthy and highly publicized investigation by the Senate Committee on Banking and Currency into stock market practices and the reasons for the stock market crash of October 1929. See Loomis, The Securities Exchange Act of 1934 and the Investment Advisers Act of 1940, 28 Geo. Wash. L. Rev. 214, 216-217 (1960). “The capital of an association may be represented by with-drawable capital accounts (shares and share accounts) or permanent reserve shares, or both . . . Ill. Rev. Stat., c. 32, § 761 (a). “Permanent reserve shares shall constitute a secondary reserve out .of which losses shall be paid after all other available reserves have been exhausted . . . .” Id., § 763. Id., §741 (a)(1). Id., §742 (d)(2). Each borrower from a savings and loan association automatically becomes a member of the association, id.," } ]

[ { "docid": "1514858", "title": "", "text": "a “security” must begin with a review of the statutory language of the federal securities laws. The term security has the same meaning for purposes of both the 1933 Securities Act and the 1934 Securities Exchange Act. Landreth Timber Co. v. Landreth — U.S. —, — n. 1, 105 S.Ct. 2297, 2302 n. 1, 85 L.Ed.2d 692 (1985). The 1933 Securities Act definition encompasses a large number of financial instruments, and includes: ... any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate, or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a “security”, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. 15 U.S.C. § 77b(l). Appellants contend that the transactions at issue in this case are investment contracts and thus securities within the meaning of the federal securities laws. The term “security” has been interpreted broadly, encompassing unusual financial instruments as well as these commonly considered to be securities. Marine Bank v. Weaver, 455 U.S. 551, 555, 102 S.Ct. 1220, 1222, 71 L.Ed.2d 409 (1982); Tcherepnin v. Knight, 389 U.S. 332, 338, 88 S.Ct. 548, 554, 19 L.Ed.2d 564 (1967). The “investment contract” has been one of the means employed to bring “instruments of ‘more variable character’ ” within the scope of the federal securities laws. Landreth, — U.S. at —, 105 S.Ct. at 2302, quoting SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 351, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943). Within the scope of the investment contract" }, { "docid": "18371440", "title": "", "text": "not join in this motion. . 15 U.S.C. Section 77b(l). . The statutory definition states that a note which has a maturity date exceeding nine months is not a security. . The Legislative purpose was succinctly stated by the Supreme Court in Forman, 421 U.S. at 849, 95 S.Ct. at 2059, “The primary purpose of the Securities Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interests of investors. . See S.E.C. v. Diversified Industries, Inc., 465 F.Supp. 104 (D.D.C.1979) which sets out the various tests employed by the different circuits. See also 39 A.L.R.Fed. 357. . The ultimate inquiry of this test is whether the holder of the note has contributed risk capital subject to the managerial and entrepreneurial efforts of others. . ... The risk to the lender increases in proportion to the amount that is borrowed in relation to the size of the borrower’s business. The risk to the lender also increases in proportion to the degree to which his funds are necessary to the formation of the enterprise. AMFAC Mortgage Corp. v. Arizona Mall of Tempe, 583 F.2d 426, 432 (9th Cir. 1978)." }, { "docid": "9581114", "title": "", "text": "markets — through the sales of widely-held securities of large corporations. The legislative history is abundantly clear on this point, and the very name of the 1934 Exchange Act says something about what was bothering. Congress. The primary purpose of the Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities mar ket. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interest of investors. Forman, 421 U.S. at 849,95 S.Ct. at 2059,44 L.Ed.2d at 630. As far as we can tell from the legislative history, Congress never pondered the sale of business question, being concerned with the grander problems of the day. However, the fact that Congress was concerned primarily with large-scale fraud in the capital markets does not mean that it would disapprove of statutory protection against small-scale fraud as well. Notwithstanding the emphasis on exchange abuses in the provisions and legislative history of the ’34 Act, “the coverage of the antifraud provisions of the securities laws is not limited to instruments traded at securities exchanges and over-the-counter markets .... ” Marine Bank v. Weaver, 455 U.S. 551, 556, 102 S.Ct. 1220, 1223, 71 L.Ed.2d 409, 415 (1982). Given the lack of any direct treatment of the sale of business question in the legislative history, we are inclined to concentrate on what the drafters actually did. Section 10(b) of the Exchange Act prohibits manipulative and deceptive devices “in connection with the purchase or sale of any security registered on a national exchange or any security not so registered ...” 15 U.S.C. § 78j(b) (emphasis added). If Congress had wanted to exempt the privately negotiated sale of a controlling interest of stock in a small business from this antifraud provision it could have done so. In this case, the transaction is no doubt exempt from the registration requirements of ’33 Act, since it would qualify as a private offering under" }, { "docid": "23397194", "title": "", "text": "Congressional purpose underlying the securities laws has been recently interpreted by the Court: The primary purpose of the Securities Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market[ ] of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interest of investors. Forman, supra, 421 U.S. at 849, 95 S.Ct. at 2059, 44 L.Ed.2d at 630. The Court in Forman held that “stock” issued to purchasers of cooperative housing was not a security, since its purchasers were not obtaining an “investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others” but rather were “motivated by a desire to use or consume the item purchased . . . .” 421 U.S. at 852-53, 95 S.Ct. at 2060, 44 L.Ed.2d at 632. The Court reasoned: Because securities transactions are economic in character Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not on the name appended thereto. 421 U.S. at 849, 95 S.Ct. at 2059, 44 L.Ed.2d at 630. The courts of appeals have followed this “economic realities” approach in holding that these statutory definitions should not be taken literally and that not all “notes” are securities: It does not follow, however, that every transaction within the interlocutory clause of § 10, which involves promissory notes ... is within Rule 10b-5. The Act is for the protection of investors, and its provisions must be read accordingly- Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 800 (2d Cir.), cert. denied 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973). See also C. N. S. Enterprises, Inc. v. G & G Enterprises, Inc., 508 F.2d 1354 (7th Cir.), cert. denied 423 U.S. 825, 96 S.Ct. 38, 46 L.Ed.2d 40, 44 U.S.L.W. 3201 (Oct. 6, 1975); McClure v. First National Bank of" }, { "docid": "20564886", "title": "", "text": "the agreement in certain respects. Thereafter Movielab failed to make payments due on the notes and on August 25, 1970, Berkey gave notice of its election to accelerate payment of the full amount of the notes. When settlement negotiations failed, both sides simultaneously instituted suits against each other on September 1, 1970, Berkey bringing suit on the notes in the New York County Supreme Court, and Movie-lab instituting the present action here, the actions being commenced within an hour of each other. Movielab has moved to dismiss the state court suit, or, in the alternative, to stay that proceeding pending disposition of this ease. The complaint here alleges that Berkey induced Movielab to make and deliver the notes in exchange for the assets by various false representations and concealment of certain material facts (e. g., the price Berkey had paid for the assets being sold to Movielab; the extent of losses that had been suffered; the status of the assets and equipment; and Berkey’s relationships with customers), with the result that Movielab was unable efficiently to use the assets acquired from Berkey and suffered heavy losses. The Motion to Dismiss Berkey contends that we lack subject matter jurisdiction under § 10(b) of the Exchange Act, which prohibits fraud “in connection with the purchase or sale of any security” (emphasis added), for the reason that the notes issued by Movielab did not constitute a “security” but were merely an individual loan of the type not encompassed within the prohibitions of the federal securities laws. At first blush we were much attracted to Berkey’s position. The primary purpose behind the adoption of the antifraud provisions of the 1933 and 1934 Acts was to protect public investors against fraud in the sale of securities of the type normally offered in the market place. See, e. g., SEC v. W. J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946); SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 351, 64 S.Ct. 120, 88 L.Ed. 88 (1943). If instruments used in every private loan transaction qualified as securities under" }, { "docid": "9581123", "title": "", "text": "S.Ct. 548, 19 L.Ed.2d 564 (1967) (holding withdrawable capital shares in savings and loan association a security); SEC v. United Benefit Life Insurance Co., 387 U.S. 202, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967) (holding insurance company’s “Flexible Fund Annuity” contract an investment contract); SEC v. CM. Joiner Leasing Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88 (1943) (holding assignments of oil leases an investment contract). . Some of the cases discussed in this opinion were brought under the Securities Act of 1933, while others were brought under the Securities Exchange Act of 1934. We do not treat the cases differently depending on the act under which they were brought, since the Supreme Court has consistently held that the definition of security under the two acts is essentially the same. Marine Bank v. Weaver, 455 U.S. 551, 555 n. 3, 102 S.Ct. 1220, 1223 n. 3, 71 L.Ed.2d 409, 414 n. 3 (1982). . The primary purpose of the Securities Exchange Act of 1934 was to regulate the.exchanges and over-the-counter markets where securities are traded on a large scale. Section 2 of the Act, 15 U.S.C. § 78b codifies the purpose of the legislation as follows: For the reasons hereinafter enumerated, transactions in securities as commonly conducted upon securities exchanges and over-the-counter markets are affected with a national public interest which makes it necessary to provide for regulation and control of such transactions .... Such transactions (a) are carried on in large volume by the public generally and in large part originate outside the States in which the exchanges and over-the-counter markets are located .... Frequently the prices of securities on such exchanges and markets are susceptible to manipulation and control, and the dissemination of such prices gives rise to excessive speculation resulting in sudden and unreasonable fluctuations in the prices of securities .... President Roosevelt advocated the legislation as a means of regulating the national exchanges. In his letter to the Congress of February 9, 1934, he stated: The exchanges in many parts of the country which deal in securities and commodities conduct, of course, a national" }, { "docid": "23397192", "title": "", "text": "64 S.Ct. 120, 123, 125, 88 L.Ed. 88, 93, 95 (1943); Tarvestad v. United States, 418 F.2d 1043, 1048 (8th Cir. 1969). The district court essentially determined, after viewing all of the other relevant facts, that no jury question was presented with respect to the nature of the Artko note. It is this determination which we review. II. INTERPRETATION OF THE SECURITIES LAWS Title 15 U.S.C. § 77b(l) (1933 Act) defines security as including “any note. . . . exempting only those which arise “out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which [have] a maturity at the time of issuance of not exceeding nine months . . . 15 U.S.C. § 77c(a)(3). The Exchange Act similarly defines security as “any note . . . but shall not include . . . any note which has a maturity at the time of issuance of not exceeding nine months . . . 15 U.S.C. § 78c(a)(10). These definitions of security have been held to be virtually identical, Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). In interpreting the securities acts we are reminded that courts should construe the details of an act in conformity with its dominating general purpose . read text in the light of context and . . . interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy. S. E. C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-351, 64 S.Ct. 120, 123, 88 L.Ed. 88, 92-93 (1943). As the Supreme Court noted recently, “ ‘[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.’ Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892).” United Housing Foundation v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621, 630 (1975). The" }, { "docid": "18561248", "title": "", "text": "54(b). II. SECURITIES In a grant of partial summary judgment, the district court concluded that the contractual loan agreements/promissory notes were securities under the federal securities laws. The appellants contend that the trial court erred by ruling on the matter before trial, and that genuine factual disputes exist as to certain subsidiary aspects of this circuit’s “risk capital” test for determining whether a particular instrument is a “security” under the federal securities laws. The Securities Act of 1933 and the Exchange Act of 1934 include notes within the definition of a security “unless the context otherwise requires.” 15 U.S.C. § 77b(l); 15 U.S.C. § 78c(a)(10). The central distinction to be made is whether the particular transaction is an “investment” or a commercial lending situation, the latter of which is outside the scope of the federal securities laws. United California Bank v. THC Financial Corp., 557 F.2d 1351, 1356-1358 (9th Cir.1977). “The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interest of investors.” United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621 (1975). Thus, the Supreme Court has included within the definition of a security “an investment of money in a common enterprise with profits to come solely from the efforts of others.” SEC v. W.J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244 (1946). The definition of a security is not likely to include purely private transactions whose terms are negotiated between lender and borrower. Marine Bank v. Weaver, 455 U.S. 551, 560 & n. 10, 102 S.Ct. 1220, 1225 & n. 10, 71 L.Ed.2d 409 (1982) (profit interest and other negotiated terms in exchange for loan guarantee not a security) (citing Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1260-62 (9th Cir.1976) (Wright, J., concurring)). The Supreme Court has “repeatedly held that the test ‘is what character the instrument is" }, { "docid": "22696045", "title": "", "text": "and variable schemes devised by those who seek the use of the money of others on the promise of profits,” Howey, 328 U. S., at 299, and therefore do not fall within “the ordinary concept of a security.” A We reject at the outset any suggestion that the present transaction, evidenced by the sale of shares called “stock,” must be considered a security transaction simply because the statutory definition of a security includes the words “any . . . stock.” Rather we adhere to the basic principle that has guided all of the Court’s decisions in this area: “[I]n searching for the meaning and scope of the word ‘security’ in the Act[s], form should be disregarded for substance and the emphasis should be on economic reality.” Tcherepnin v. Knight, 389 U. S. 332, 336 (1967). See also Howey, supra, at 298. The primary purpose of the Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interest of investors. Because securities transactions are economic in character Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not on the name appended thereto. Thus, in construing these Acts against the background of their purpose, we are guided by a traditional canon of statutory construction: “[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Church of the Holy Trinity v. United States, 143 U. S. 457, 459 (1892). See also United States v. American Trucking Assns., 310 U. S. 534, 543 (1940). Respondents’ reliance on Joiner as support for a “literal approach” to defining a security is misplaced. The issue in Joiner was whether assignments of interests in oil leases, coupled with the promoters’ offer to drill" }, { "docid": "23397193", "title": "", "text": "to be virtually identical, Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). In interpreting the securities acts we are reminded that courts should construe the details of an act in conformity with its dominating general purpose . read text in the light of context and . . . interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy. S. E. C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-351, 64 S.Ct. 120, 123, 88 L.Ed. 88, 92-93 (1943). As the Supreme Court noted recently, “ ‘[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.’ Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892).” United Housing Foundation v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621, 630 (1975). The Congressional purpose underlying the securities laws has been recently interpreted by the Court: The primary purpose of the Securities Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market[ ] of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interest of investors. Forman, supra, 421 U.S. at 849, 95 S.Ct. at 2059, 44 L.Ed.2d at 630. The Court in Forman held that “stock” issued to purchasers of cooperative housing was not a security, since its purchasers were not obtaining an “investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others” but rather were “motivated by a desire to use or consume the item purchased . . . .” 421 U.S. at 852-53, 95 S.Ct. at 2060, 44 L.Ed.2d at 632. The Court" }, { "docid": "9581113", "title": "", "text": "sell an entire small business in a privately negotiated face-to-face transaction, and argue that the purposes of the Act are not furthered by extending the securities laws to such a transaction. Discerning congressional intent behind a major piece of legislation is rarely easy. Here, every argument on one side that “Congress never meant to federalize state corporation law,” can be countered by an argument that “Congress wanted to protect the public from fraud.” As one authority states accurately but unhelpfully, “Congress certainly intended that the 1934 Act and the 1933 Act should intrude into the subject area governed by common law fraud and should provide a broader remedy than that traditionally available under state law, but they were not intended to provide a remedy for all fraud.” Thompson, The Shrinking Definition of a Security: Why Purchasing All of a Company's Stock is Not a Federal Security Transaction, 57 N.Y.U.L.Rev. 225, 228-29 (1982). There is no doubt that Congress was primarily concerned with abuses occurring in the financial markets — the national exchanges and the over-the-counter markets — through the sales of widely-held securities of large corporations. The legislative history is abundantly clear on this point, and the very name of the 1934 Exchange Act says something about what was bothering. Congress. The primary purpose of the Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities mar ket. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interest of investors. Forman, 421 U.S. at 849,95 S.Ct. at 2059,44 L.Ed.2d at 630. As far as we can tell from the legislative history, Congress never pondered the sale of business question, being concerned with the grander problems of the day. However, the fact that Congress was concerned primarily with large-scale fraud in the capital markets does not mean that it would disapprove of statutory protection against small-scale fraud as well. Notwithstanding the emphasis" }, { "docid": "18371439", "title": "", "text": "any changes, extensions, releases or lack of notices; and (h) guarantees the payment hereof in the hands of any bona fide holder. The Maker will pay on demand all costs of collection and attorneys’ fees, incurred or paid by the Holder in enforcing this note on default. As herein used the word “Holder” shall mean not only American Bank and Trust Company, but also any endorsee of this note, who is in possession of it, or the bearer hereof, if this note is at the time payable to the bearer. This note and the rights and obligations of the parties hereunder shall be governed by Kentucky law. Due Date July 3,1981_ x /s/ E. L. Wallace_ E. L. Wallace Address x /s/ Jan L. Wallace_ Jan L. Wallace x Anna Wallace_ P.O. Box 1331_'_ Ann Wallace x /s/ Neda H. Wallace_ Lexington, Kentucky 40590_ Neda H. Wallace . The record reveals that Jan Michael Wallace was not served with process because the U. S. Marshall was unable to locate him. Therefore, Jan Michael Wallace does not join in this motion. . 15 U.S.C. Section 77b(l). . The statutory definition states that a note which has a maturity date exceeding nine months is not a security. . The Legislative purpose was succinctly stated by the Supreme Court in Forman, 421 U.S. at 849, 95 S.Ct. at 2059, “The primary purpose of the Securities Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interests of investors. . See S.E.C. v. Diversified Industries, Inc., 465 F.Supp. 104 (D.D.C.1979) which sets out the various tests employed by the different circuits. See also 39 A.L.R.Fed. 357. . The ultimate inquiry of this test is whether the holder of the note has contributed risk capital subject to the managerial and entrepreneurial efforts of others. ." }, { "docid": "22392318", "title": "", "text": "our interpretation. In Forman, supra, we recognized that the term “stock” is to be read in accordance with the common understanding of its meaning, including the characteristics identified in Forman. See supra, at 686. In addition, as stated in Blue Chip Stamps, supra, it is proper for a court to consider — as we do today — policy considerations in construing terms in these Acts. Justice Stevens, dissenting. In my opinion, Congress did not intend the antifraud provisions of the federal securities laws to apply to every transaction in a security described in § 2(1) of the 1933 Act: “The term ‘security’ means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, . . . investment contract, voting-trust certificate, ... or, in general, any interest or instrument commonly known as a ‘security.’” 15 U. S. C. §77b(1). See also ante, at 686, n. 1. Congress presumably adopted this sweeping definition “to prevent the financial community from evading regulation by inventing new types of financial instruments rather than to prevent the courts from interpreting the Act in light of its purposes.” Sutter v. Groen, 687 F. 2d 197, 201 (CA7 1982). Moreover, the “broad statutory definition is preceded ... by the statement that the terms mentioned are not to be considered securities if ‘the context otherwise requires . . . Marine Bank v. Weaver, 455 U. S. 551, 556 (1982). The legislative history of the 1933 and 1934 Securities Acts makes clear that Congress was primarily concerned with transactions in securities that are traded in a public market. In United Housing Foundation, Inc. v. Forman, 421 U. S. 837 (1975), the Court observed: “The primary purpose of the Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and protect the interest of investors. Because securities" }, { "docid": "321078", "title": "", "text": "the reach of the securities definition in the uniform act, if different, would be broader than that in the federal statutes. Id. Accord State v. Investors Security Corp., 297 Minn. 1, 209 N.W.2d 405, 409 (1973) (the Minnesota courts take an expansive view which has led to “a consistent broadening of the coverage of [the state’s securities] statutes”) (footnote omitted). The Minnesota legislature explicitly expressed its intent that the Minnesota Blue Sky Act be construed to effectuate the general purpose of uniformity with securities laws in other states and consistency with federal securities regulation in Minn.Stat.Ann. § 80A.31 (West Supp.1984). Thus, we look to cases construing the federal securities laws to guide us in interpreting section 80A.14(18) of the Minnesota Blue Sky Act in the context now before us. The United States Supreme Court has held that interests virtually identical to those here in issue, and sold under similar circumstances, were “investment contract[s]” or interests “commonly known” as securities, and thus met these definitions of securities under the federal Securities Act of 1933, see 15 U.S.C. § 77b(l) (1982). SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 351-352, 64 S.Ct. 120, 123-24, 88 L.Ed. 88 (1943). The Court in Joiner specifically declined to rest its finding of coverage on the alternative definition of securities in the federal statute reaching “fractional undivided interest[s] in oil, gas, or other mineral rights,” see 15 U.S.C. § 77b(l) (1982), because the interests at issue were tied to the actual conveyance of shares in real property. SEC v. C.M. Joiner Leasing Corp., supra, 320 U.S. at 352, 64 S.Ct. at 124. The Minnesota Blue Sky Act does not define securities to include fractional, undivided interests in mineral rights, but it does contain the identical investment contract definition relied upon in Joiner. See Minn.Stat.Ann. § 80A. 14(18) (West Supp.1984). The documents in the present record reveal that all plaintiffs were bound to enter an operating agreement with the defendants, giving the latter virtually unlimited control in the operation of the oil and gas wells involved. Any real property interests in the minerals in place or" }, { "docid": "22392319", "title": "", "text": "rather than to prevent the courts from interpreting the Act in light of its purposes.” Sutter v. Groen, 687 F. 2d 197, 201 (CA7 1982). Moreover, the “broad statutory definition is preceded ... by the statement that the terms mentioned are not to be considered securities if ‘the context otherwise requires . . . Marine Bank v. Weaver, 455 U. S. 551, 556 (1982). The legislative history of the 1933 and 1934 Securities Acts makes clear that Congress was primarily concerned with transactions in securities that are traded in a public market. In United Housing Foundation, Inc. v. Forman, 421 U. S. 837 (1975), the Court observed: “The primary purpose of the Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and protect the interest of investors. Because securities transactions are economic in character Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not on the name appended thereto.” Id., at 849. I believe that Congress wanted to protect investors who do not have access to inside information and who are not in a position to protect themselves from fraud by obtaining appropriate contractual warranties. At some level of analysis, the policy of Congress must provide the basis for placing limits on the coverage of the Securities Acts. The economic realities of a transaction may determine whether “unusual instruments” fall within the scope of the Acts, ante, at 690, and whether an ordinary commercial “note” is covered, ante, at 693-694. The negotiation of an individual mortgage note, for example, surely would not be covered by the Acts, although a note is literally a “security” under the definition. Cf. Chemical Bank v. Arthur Andersen & Co., 726 F. 2d 930, 937 (CA2), cert. denied, 469 U. S. 884 (1984). The marketing to the public of a large" }, { "docid": "23364765", "title": "", "text": "Inc. v. Pro’s, Inc., 543 F.2d 38 (7th Cir. 1976). As Mr. Justice Powell explained in Forman : “The primary purpose of the Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interest of investors. Because securities transactions are economic in character Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not on the name appended thereto. Thus, in construing these Acts against the background of their purpose, we are guided by a traditional canon of statutory construction: “ ‘[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.’ Church v. the Holy Trinity v. United States, 143 U.S. 457, 459 (1892).” 421 U.S. at 849, 95 S.Ct. at 2059. If an interest is not a security in economic reality, abuses should be remedied by Congress rather than by an over-liberal extension of the securities laws. Id. at 859 n. 26, 95 S.Ct. 2051. However, the economic inducement for plaintiff’s interest in the pension fund was investment for a profit to provide wherewithal in his retirement. This plaintiff’s interest in the fund embodies many of the significant characteristics typically present in the instruments concededly covered by the securities acts. Id. at 851, 95 S.Ct. 2051. Plaintiff has an undivided interest in the Local 705 Pension Fund consisting of the aggregate of all monies invested on behalf of Local 705 union members by covered employers for whom those members worked. Those monies are managed and invested by the pension fund trustees in stocks, bonds, mortgages and other investments for the sole benefit of Local 705 members. As such, the Local 705 Pension Fund resembles a mutual fund, viz., a pool of money invested for the" }, { "docid": "15495342", "title": "", "text": "or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. . The Securities Act defines “sale” or “sell” to “include every contract of sale or disposition of a security or interest in a security, for value.” 15 U.S.C.A. § 77b(3). In the Exchange Act, these terms are defined to “include any contract to sell or otherwise dispose of.” 15 U.S. C.A. § 78c(a)(14). The' terms “buy” or “purchase” are not defined in the Securities Act but they are defined in the Exchange Act to “include any contract to buy, purchase, or ofherwise acquire.” 15 U.S.C.A. § 78c(a)(13). The term “security” is defined in the Exchange Act as “unless the context otherwise requires — [t]he term ‘security’ means any note but shall not include currency or any note which has a maturity at the time of issuance of not exceeding nine months . . 15 U.S.C.A. § 78c(a)(10). Under the Securities Act, “unless the context otherwise requires — [t]he term ‘security’ means any note . . 15 U.S.C.A. § 77b(l). . This Court in McClure v. First National Bank, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975), concluded that: [a] commercial bank in accepting a pledge of stock as additional consideration for the extension of an overdue commercial loan does not necessarily affect the securities industry. . [MJere acceptance of a stock pledge as collateral in a privately negotiated transaction between borrower and lender does not, of itself, bring within the scope of the federal securities acts a transaction otherwise outside their purview. . The context of the Court’s remark is illuminating: The primary purpose of the Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to" }, { "docid": "2052891", "title": "", "text": "characterized as a “certificate of interest” or a profit sharing arrangement, it does not follow that the Securities Exchange Act applies. In an analagous situation we held that the statutory definition of a security embracing “every note” cannot be read literally and in context, a “note” may be without the statute. Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973). Similar reasoning requires that the Piceirillo agreement be examined in context to determine if the transaction, however labeled, is within the scope of the Act. In construing the Securities Act of 1933, 15 U.S.C. §§ 77a-77aa (1976), the Supreme Court noted that “courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy.” SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-51, 64 S.Ct. 120, 123-124, 88 L.Ed. 88 (1943) (footnote omitted). Some years later, the Court emphasized that the focus of the Act is on the sale of securities to raise money for profitmaking purposes, on the exchanges on which securities are traded, and on the need for regulation to prevent fraud and protect investors. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621 (1975). Thus, while the statutes are to be construed liberally, application is to turn on the economic realities underlying a particular transaction. Id. at 851-52, 95 S.Ct. at 2060. And as we cautioned in Lino “not every plan generating allegations of fraud is a violation of federal securities law.” 487 F.2d at 695. The majority believes that the Piceirillo agreement comes within the Exchange Act designation of an investment contract. In United Housing Foundation, Inc. v. Forman, the Court reaffirmed the explanation of the type of security that it had discussed in SEC v. W. J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244 (1946). Describing its formulation" }, { "docid": "17380177", "title": "", "text": "1933, 15 U.S.C. Sec. 77b(l) provides a similar definition of security, a definition which the Supreme Court has termed “virtually identical” to that of the Securities Exchange Act of 1934. Tcherepnin v. Knight, 389 U.S. 332, 335-336, 88 S.Ct. 548, 552-553, 19 L.Ed.2d 564 (1967). While both Acts contain admittedly broad definitions, not every commercial transaction is within their ambit. See Curran v. Merrill Lynch, Pierce, Fenner and Smith, 622 F.2d 216, 222 (6th Cir. 1980), cert. granted-U.S.-, 101 S.Ct. 1971, 68 L.Ed.2d 293 (1981). The literal inclusion of participation within the statutory definition of “security” is not dispositive of the question, however, in view of the provision in both Acts that the definitions apply “unless the context otherwise requires.” In interpreting the Securities Acts, the rules of statutory construction have been subordinated to the doctrine that courts will construe the provisions of a statute in a manner consistent with its dominant purpose and will carry out the generally expressed legislative policy by reading the text in light of the context. See SEC v. National Securities, Inc., 393 U.S. 453, 466 (1969). SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-51, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943). In fact, in determining the scope of the term “security,” the Supreme Court has disregarded form in favor of substance and counselled that application of the federal securities statutes turns on the “economic realities” underlying a transaction. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 848, 95 S.Ct. 2051, 2058, 44 L.Ed.2d 621 (1975); Tcherepnin v. Knight, supra at 336. In focusing on the economic realities to distinguish securities transactions from commercial dealings, the Court has used a test which, in “shorthand form”: . . . embodies the essential attributes that run through all of the Court’s decisions defining a security. The touchstone is (1) the presence of an investment (2) in a common venture (3) premised on a reasonable expectation of profits (4) to be derived from the entrepreneurial or managerial efforts of others. Forman, supra at 852, 95 S.Ct. at 2060. In applying the Howey-Forman criteria" }, { "docid": "3490479", "title": "", "text": "Central caused Tucker to file for reorganization under Chapter 11 of the Bankruptcy Code. During reorganization, Tucker continued to deduct amounts from employees’ paychecks. Eventually, the proceeding for reorganization under Chapter 11 of the Bankruptcy Code was changed to a proceeding for liquidation under Chapter 7. DISCUSSION I. Securities To sustain their claims under the federal securities acts and the Interstate Commerce Act, the plaintiffs must allege transactions involving securities. 15 U.S.C.A. § 77b(l) presents the definition of security for the Securities Act of 1933, which for these purposes is considered to be the same as the definition for the 1934 Act, Reves v. Ernst & Young, 494 U.S. 56, 110 S.Ct. 945, 108 L.Ed.2d 47 (1990): any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a “security”.... Plaintiffs argue that the wage deferral contracts are either “investment contracts],” or debt instruments such as “note[s]” or “evidence[s] of indebtedness.” A. Investment Contract A contract is not an investment contract unless the person parting with his money expects to receive profit. The Supreme Court, in SEC v. W.J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244 (1946), defined an investment contract as a “scheme [that] involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” The Court elaborated on that definition in United Housing Foundation v. Forman, 421 U.S. 837, 852, 95 S.Ct. 2051, 2060, 44 L.Ed.2d 621 (1975): By profits, the Court has meant either capital appreciation resulting from the development of the initial investment, as in [SEC v. C.M.] Joiner, [320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88 (1943) ] (sale of oil leases conditioned on promoters’ agreement to drill exploratory well), or a participation in earnings resulting from the use of investors’ funds, as in" } ]

[ { "docid": "10710139", "title": "", "text": "may file a civil action in which the aggrieved party may join. Should the Commission fail to file suit within 180 days after the charge has been filed, the Commission must give the aggrieved party notice of his right to sue within 90 days after the giving of such notice. Upon certification that the case is one of general public importance, the Commission may be allowed, in the discretion of the Court, to intervene in the aggrieved party’s suit. It is the opinion of this Court that the time period from the 30th day after a charge is filed until the 180th day after the charge is filed is the sole time within which the Commission may file suit on its own behalf (except in instances where the charge is referred to a state agency or where the Attorney General brings suit, neither of which are present in the instant action). Further, since an aggrieved party must bring suit within the statutory time limits, Genovese v. Shell Oil Co., 488 F.2d 84 (5th Cir., 1973), the act does not authorize any suit to be filed after the 270th day from the date the charge was filed. Therefore, from the undisputed fact that this action was not filed by the Commission until over three years after the charge upon which the action is based was filed, it is the conclusion of this Court that this Court lacks jurisdiction and that this action must be dismissed. The above result was reached by the district court in EEOC v. Cleveland Mills Co., 364 F.Supp. 1235 (W.D.N.C. 1973). For the reasons expressed in that opinion, together with those expressed herein, the Court feels compelled to reach the above result, notwithstanding the fact that there is some authority to the contrary. EEOC v. Bartenders International Union, Local 41, 369 F. Supp. 827 (N.D.Cal.1973); EEOC v. Mobil Oil, 362 F.Supp. 786 (W.D.Mo.1973). As the Court stated in Cleveland Mills, “This statute leaves much to be desired in clarity and precision.” 364 F.Supp. at 1237. Compounding the problem is the fact that the legislative history relating to" } ]

[ { "docid": "22428668", "title": "", "text": "charges filed thereafter.” Pub.L. No. 92-261, § 14, 86 Stat. 103 (Mar. 24, 1972). All charges pending with the EEOC on March 24, 1972 were thereby made available as a basis for an EEOC suit. Appellee argues that all the charges which underlie the EEOC’s complaint were not “charges” on March 24, 1972, because the charges had passed from the stage of “charges” to the status of “cases” under EEOC Regulations, 35 Fed.Reg. 10110 (1970). Appellee’s argument is an exercise in linguistic sophistry. There is no indication in the legislative history that Congress was making the “charge-case” distinction in applying the 1972 amendments to pending “charges.” Indeed, the evidence is that Congress intended to give as much protection as possible to aggrieved «parties and broad authority to a Commission swamped with a backlog of work. See EEOC v. Eagle Iron Works, 367 F.Supp. 817, 820 (S.D.Iowa 1973) ; EEOC v. Bartenders Local 41, 369 F.Supp. 827, 830 (N.D.Cal.1973). Cf. EEOC v. Christiansburg Garment Co., Inc., 376 F.Supp. 1067, 1073-74 (W.D.Va. 1974) . The second issue is whether section 706(f)(1) of Title VII precludes the EEOC from filing suit more than 180 days after a charge is filed with it. The District Court held that the EEOC is so precluded and granted summary judgment for Appellee on the ground that all the underlying charges had been filed with the Commission more than 180 days before the EEOC brought suit. The District Court concluded thusly “with some trepidation in view of the split of authority” among the district courts which had considered the question. Section 706(f)(1), 42 U.S.C.A. § 2000e-5(f)(1), does not on its face limit the EEOC’s power to seek court enforcement of Title VII to 180 days from the filing of an administrative charge. In relevant part the section reads, If within thirty days after a charge is filed with the Commission * * *, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision" }, { "docid": "10894821", "title": "", "text": "procedural right upon a defendant in a discrimination ease. As Judge Miller stated in Equal Employment Opportunity Commission v. Firestone Tire & Rubber Co., 366 F. Supp. 273, 276 (D.Md.1973): The regulation ... grants an important procedural benefit to the respondent, i. e., the right to be notified that the EEOC deems its efforts to conciliate as unsuccessful and terminated unless requested to be resumed by respondent within a specified time. Accord: Equal Employment Opportunity Commission v. Hickey-Mitchell Co., 7 EPD ¶ 9400 (E.D.Mo.1974). This notice allows the defendant one last chance to alter its position and conciliate before facing litigation. Equal Employment Opportunity Commission v. United States Pipe & Foundry Co., 375 F.Supp. 237 (N.D.Ala.1974); Equal Employment Opportunity Commission v. Louisville & Nashville Railroad Co., 368 F.Supp. 633, 638 (C.D.Ala.1974). Failure of the Commission to give the required notice necessitates a dismissal of the subsequent civil action brought by the EEOC. Equal Employment Opportunity Commission v. United States Pipe & Foundry Co., supra, 375 F.Supp. 237; Equal Employment Opportunity Commission v. Louisville & Nashville Railroad Co., supra; Equal Employment Opportunity Commission v. Firestone Tire & Rubber Co., supra, 366 F.Supp. at 278. The Fourth Circuit has stated that “an agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its actions cannot stand and courts will strike it down.” United States v. Heffner, 420 F.2d 809, 811 (4th Cir. 1969). Where a regulation promulgated by an administrative agency is intended to confer important procedural rights, that regulation must be strictly observed. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538-539, 90 S.Ct. 1288, 25 L. Ed.2d 547 (1970); Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 3 L.Ed. 2d 1012 (1959); Equal Employment Opportunity Commission v. Westvaco Corp., 372 F.Supp. 985, 993 (D.Md. 1974); Equal Employment Opportunity Commission v. Firestone Tire & Rubber Co., supra, 366 F.Supp. at 277. Regulation 1601.23 confers an important procedural right, and the EEOC’s blatant violation of the plain language of its own regulations dictates a dismissal of" }, { "docid": "23400381", "title": "", "text": "2137, 2139-2143. . Apparently no court has yet dealt with the problem of whether suits based on charges already pending before the Commission for over 180 days at the time of the 1972 amendments are foreclosed. This case does not present the issue, since the charge here was filed after the amendments. In view of the fact that the amendments were made applicable to already pending cases, however, it would not be an unreasonable position that in these cases the 180-day period began running from the date of the amendments and not the date of filing of the charges. . It is clear that when Congress was considering the alternative course of giving the EEOC power to issue cease and desist orders, avoidance of duplicative proceedings was of major concern. E. g., House Report No. 92-238, 92d Cong. 1st Sess. (1971), U. S.Code Cong. & Admin.News 1972, p. 2137. Although the same concern does not appear expressly after the cease and desist proposal was dropped in favor of allowing the Commission to seek pretrial enforcement, there is no reason why the problem of duplicative proceedings is just as significant when they are botii judicial in nature. . See EEOC v. Missouri Pac. R. R., 493 F.2d 71 (8th Cir. 1974); EEOC v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974); EEOC v. Cronin, 370 F.Supp. 579 (E.D.Mo.1973); EEOC v. Union Oil Co. of California, 369 F.Supp. 579 (N.D.Ala. 1974). . EEOC v. Cleveland Mills Co., 364 F.Supp. 1235, 1238 (W.D.N.C.1973), rev’d., No. 73-2298, 502 F.2d 153 (4th Cir. 1974)." }, { "docid": "10894812", "title": "", "text": "interpretation of § 706(f)(1) was succinctly stated in Equal Employment Opportunity Commission v. Mobil Oil Corp., 362 F.Supp. 786, 792 (W.D. Mo.1973) : The scheme established by the statute is simple. First, no one may sue within the first 30 days after a charge is filed. Secondly, between the 30th day and the 180th day only the EEOC may sue. Thirdly, after the 180th day (if notice is given to the aggrieved employee) both the EEOC and the aggrieved employee may sue. Accord: Equal Employment Opportunity Commission v. Christiansburg Garment Co., 376 F.Supp. 1067 (W.D.Va. 1974); Equal Employment Opportunity Commission v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974). The aggrieved party has 90 days after receiving notice from the EEOC in which to bring a civil action. If an individual suit is brought within that time, the Commission’s right to sue is terminated and, thereafter, it may only intervene in the pending litigation. Once the Commission files suit, however, the aggrieved employee’s sole remedy is intervention. III. A more serious challenge is made against the method and manner in which the EEOC conducted its investigation of the charge. Western Electric argues that the Commission did not follow the procedures outlined in an agency manual which call for personal interviews with the defendant and tours of its facilities. Instead, as part of a special pilot project, interrogatories were propounded by the Commission to defendant. Moreover, defendant asserts that the EEOC’s use of compulsory interrogatories violated the discovery procedure established by the Act. In a cover letter forwarding the interrogatories, the Baltimore District Director of EEOC stated: As part of its investigation, this Commission requires that you answer the enclosed questions and return them within fourteen days after receipt. Failure to respond to the interrogatory within fourteen days will constitute an admission on your part that the act complained of was discriminatory. It is argued that the Commission does not have the power to require the defendant to answer interrogatories, nor does it have the right to compel answers by threatening to interpret silence as an admission of wrongful conduct." }, { "docid": "10894839", "title": "", "text": "Corp., 7 FEP Cases 666 (W.D.Mo.1974); Equal Employment Opportunity Commission v. Berman Brothers Iron & Metal Co., 7 EPD ¶ 9212 (N.D.Ala.1974); Equal Employment Opportunity Commission v. Griffin Wheel Co., 7 EPD 9202 (N.D. Ala.1974); Equal Employment Opportunity Commission v. Union Oil Co. of California, 369 F.Supp. 579 (N.D.Ala.1974); Equal Employment Opportunity Commission v. Louisville & Nashville Railroad Co., 368 F.Supp. 633 (N.D.Ala.1974); Equal Employment Opportunity Commission v. Cleveland Mills Co., 364 F.Supp. 1235 (W.D.N.C.1973). . This Court is not the first to review the sufficiency of an EEOC investigation. In Equal Employment Opportunity Commission v. Hickey-Mitchell Co., 7 EPD ¶ 9400 (E. D.Mo.1974), the district court concluded that the Commission “made a sufficient effort to investigate the discrimination charge filed . . . .” It is noteworthy that the Commission in that case personally interviewed defendant’s personnel director, examined the personnel file of the charging party, interviewed the aggrieved employee’s supervisor, discussed promotion policies and racial make-up with the personnel director, and conducted a “walk through” visual inspection of defendant’s premises. None of this activity was conducted in the present case. . Deposition of Elma A. I-Ioffman, Manager of Washington Installation area: Q. Now, is it your responsibility to respond to that letter and make a decision as to whether or not you want to accept or reject the invitation? A. It was my responsibility. Q. Did you decide at any time not to respond to that letter and reject the Commission’s invitation to conciliate? A. Yes. We decided not to respond . . . (p. 8, lines 6-12). * * * * Q. When was that decision made? A. Shortly after receiving this letter. Somewhere within the seven days after we received it. (p. 9, lines 15-17). Deposition of W. A. Ilulmes, Jr., Department Chief Personnel: Q. . . . [Y]ou made a notation that the decision was made on the 9th to reject the conciliation? A. Yes. (p. 9, lines 17-19). A. . . . I reviewed with [Hoffman] the case from the beginning. We went over and took another look at the determination of the case." }, { "docid": "22428696", "title": "", "text": "between a “case” and a “charge” is purely for internal administrative purposes and is clearly not controlling when considering what Congress meant by “charges” in enacting the 1972 amendments. . See S. Comm, on Labor and Public Welfare, Legislative History of the Equal Employment Opportunity Act of 1972, 92d Cong., 2d Sess. 1674 (1972). The letter from the Department of Justice which is cited therein as the basis for section 14 stated, “we see no reason why the many thousands of persons who have filed charges which are still being processed and who have waited as long as 18 months to two years for resolution of them should not have the benefit of the new enforcement authority.” The letter is quoted in EEOC v. Christiansburg Garment Co., Inc., 376 F.Supp. 1067, 1074 (W.D.Va. 1974). This letter fully rebuts Appellee’s argument. . As of this writing, the following decisions have held that the 180-day provision limits the time within which the EEOC may sue: EEOC v. United States Pipe & Foundry Co., 375 F.Supp. 237 (N.D.Ala.1974); EEOC v. Union Oil Co. of California, 369 F.Supp. 579 (N.D.Ala. 1974); EEOC v. Container Corp. of America, 352 F.Supp. 262 (M.D.Fla.1972); EEOC v. General Dynamics Corp., 382 F.Supp. 59 (N.D.Tex.1974). Decisions which have held to the contrary include EEOC v. Louisville & N. R.R., No. 74-1185, 505 F.2d 610 (5th Cir. 1974), rev’g 368 F.Supp. 633 (N.D.Ala. 1974); EEOC v. Cleveland Mills Co., 502 F.2d 153 (4th Cir. 1974), rev’g 364 F.Supp. 1235 (W.D.N.C.1973); EEOC v. U. S. Industries, Civil No. 73-283 (W.D.Tenn. Jan. 3, 1974); EEOC v. Christians-burg Garment Co., 376 F.Supp. 1067 (W.D.Va. 1974); EEOC v. E. 1. duPont de Nemours & Co., 373 F.Supp. 1321 (D.Del.1974); EEOC v. Hickey-Mitchell Co., 372 F.Supp. 1117 (E.D. Mo. 1973); EEOC v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974) appeal docketed, No. 74-1493 (5th Cir. Feb. 21, 1974); EEOC v. Bartenders Local 41, 369 F.Supp. 827 (N.D.Cal.1973); EEOC v. Eagle Iron Works, 367 F.Supp. 817 (S.D.Iowa 1973); EEOC v. Duff Brothers, 364 F.Supp. 405 (E.D.Tenn. 1973); EEOC v. Mobil Oil Corp., 362 F.Supp." }, { "docid": "21980844", "title": "", "text": "out that the purpose for the holding in Cunningham was to encourage private settlements by giving the EEOC an opportunity to attempt conciliation even if it took longer than 60 days to investigate the charges in sufficient detail to make such an attempt. Since the 1972 amendments were added, numerous decisions have held that the giving of statutory notice to a charging party does not halt the Commission’s own processes unless, of course, the charging party chooses to bring a private suit. See EEOC v. Bartenders Int’l Union, Local No. 41, 369 F.Supp. 827 (N.D.Cal.1973); EEOC v. Hickey-Mitehell, 372 F.Supp. 1117 (E.D.Mo.1973); EEOC v. Mobile Oil Corp., 362 F.Supp. 786 (W.D.Mo.1973); EEOC v. Huttig Sash and Door Company, 371 F.Supp. 848 (S.D.Ala.1974); EEOC v. Eagle Iron Works, 367 F.Supp. 817 (S.D.Iowa 1973); EEOC v. Duff Brothers, Inc., 364 F.Supp. 405 (E.D.Tenn. 1973). Therefore, there is no reason for the Commission to delay sending the notice. The issue in this case is only whether we are now going to ignore the ninety-day limitation on filing private civil suits under Title VII. By adopting the EEOC’s practice of withholding a formal “right to sue” letter until requested, the Commission is permitting charging parties to exercise complete control over commencement of the filing period. The affidavit submitted by Gretchen Huston discloses that complainants in the St. Louis District alone have extended this filing period by as much as 337 days by merely delaying request of a formal notice. Presumably the Commission would mail a formal “right to sue” letter at whatever future time a charging party so requested, regardless of the lapse of time after receipt of the first notice. The effect of such a procedure is to abolish any limitation period whatever, in frustration of legislative intent. 42 U.S.C. § 2000e-5(f) (4) and (5) provide for the expedition of suits filed under this Act. It would be inconsistent to encourage inordinate delays in Title VII proceedings prior to the institution of civil proceedings while attaching such a sense of urgency to a case after suit has been filed. The two-letter system employed" }, { "docid": "10894837", "title": "", "text": "citizens to obey the law, and when they do not, it asks for an accounting. How strange it is that when a government official or agency breaches a statute or regulation, it is casually dismissed as a mere technicality. A government which does not respect the law certainly cannot expect its citizens to do so. No one is above the law including the EEOC. For the reasons stated above, it is this 15th day of August, 1974, ordered: 1. That the defendant’s Motion for Summary Judgment be, and the same hereby is, granted as to claims III and IV; 2. That the defendant’s Motion for Summary Judgment is, in all other respects, denied; 3. That the defendant’s Motion for Partial Summary Judgment be, and the same hereby is, granted as to claims V and VI except as therein stated. . Plaintiff filed an amended complaint after this Court granted Western Electric’s motion to dismiss. Equal Employment Opportunity Commission v. Western Electric Co., 364 F.Supp. 188 (D.Md.1973). . The following decisions hold that the 180-day time period is not a statute of limitations restricting the right of the EEOC to file suit: Equal Employment Opportunity Commission v. Christiansburg Garment Co., 376 F.Supp. 1067 (W.D.Va.1974); Equal Employment Opportunity Commission v. E. I. duPont de Nemours & Co., 373 F.Supp. 1321 (D.Del.1974); Equal Employment Opportunity Commission v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974); Equal Employment Opportunity Commission v. United States Industries, Inc., 7 EPD ¶ 9068 (W. D.Tenn.1974); Equal Employment Opportunity Commission v. Eagle Iron Works, 367 F.Supp. 817 (S.D.Iowa 1973); Equal Employment Opportunity Commission v. Duff Bros., Inc., 364 F.Supp. 405 (E.D.Tenn. 1973); Equal Employment Opportunity Commission v. Hickey-Mitchell Co., 372 F. Supp. 1117 (E.D.Mo.1973); Equal Employment Opportunity Commission v. Mobil Oil Corp., 362 F.Supp. 786 (W.D.Mo.1973); Equal Employment Opportunity Commission v. Bartenders International Union, Local 41, 369 F.Supp. 827 (C.D.Cal.1973). Holding that the Commission is barred from bringing suit 180 days after a charge is filed are: Equal Employment Opportunity Commission v. United States Pipe & Foundry Co., 375 F.Supp. 237 (N.D.Ala.1974); Equal Employment Opportunity Commission v. Kimberly-Clark" }, { "docid": "10894811", "title": "", "text": "the construction urged by defendant would mean frustrating one of the essential purposes of the Act, that is, voluntary compliance. Under a strict filing rule of 180 days, the Commission would be unable to conduct a complete investigation of the charge and engage in meaningful conciliation. Equal Employment Opportunity Commission v. E. I. du Pont de Nemours & Co., 373 F.Supp. 1321 (D.Del.1974). It would be forced to file suit and litigate issues that might have been conciliated. The parties would from the outset assume antagonistic positions, a situation which the Act was attempting to avoid. Such an interpretation would also leave the entire process susceptible to the manipulation of the defendant. The alleged violator would have every incentive to slow down the administrative proceedings so that the 180-day period would expire before the EEOC could determine that conciliation efforts were unsuccessful. The administrative process could be easily extended beyond 180 days by a defendant which was dilatory in producing records or which pretended to bargain in good faith. This Court believes that the correct interpretation of § 706(f)(1) was succinctly stated in Equal Employment Opportunity Commission v. Mobil Oil Corp., 362 F.Supp. 786, 792 (W.D. Mo.1973) : The scheme established by the statute is simple. First, no one may sue within the first 30 days after a charge is filed. Secondly, between the 30th day and the 180th day only the EEOC may sue. Thirdly, after the 180th day (if notice is given to the aggrieved employee) both the EEOC and the aggrieved employee may sue. Accord: Equal Employment Opportunity Commission v. Christiansburg Garment Co., 376 F.Supp. 1067 (W.D.Va. 1974); Equal Employment Opportunity Commission v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974). The aggrieved party has 90 days after receiving notice from the EEOC in which to bring a civil action. If an individual suit is brought within that time, the Commission’s right to sue is terminated and, thereafter, it may only intervene in the pending litigation. Once the Commission files suit, however, the aggrieved employee’s sole remedy is intervention. III. A more serious challenge is made" }, { "docid": "22428682", "title": "", "text": "narrowly, and the Commission may, in the public interest, provide relief which goes beyond the limited interests of the charging parties.” Thus, the EEOC represents the public interest when it sues to enforce Title VII, not solely the interests of the private charging parties. In the absence of congressional intent to • apply state statutes of limitations, such restrictions do not apply to the EEOC. United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940); EEOC v. Christiansburg Garment Co., Inc., 376 F.Supp. 1067, 1071-73 (W.D.Va. 1974); EEOC v. Laacke & Joys Co., 375 F.Supp. 852, 853 (E.D.Wis.1974); EEOC v. Eagle Iron Works, 367 F.Supp. 817, 823-24 (S.D.Iowa 1973); EEOC v. Duff Brothers, Inc., 364 F.Supp. 405, 406-07 (E.D.Tenn.1973). The District Court held that two sets of charges (the “Dunavan” and “Williams group” charges) were available as a basis for the EEOC’s suit but for its conclusion on the 180-day provision. Since we reject the District Court’s construction of that provision and find no alternative basis for affirming the dismissal of Appellant’s complaint, we must reverse the District Court’s Order and reinstate the EEOC’s complaint. The District Court did not rest its conclusion solely on the 180-day provision. Instead, it addressed the availability of the particular charges on which Appellant grounded its complaint and held that the “Meek group” and “Munn” charges were barred from full consideration. Since the treatment of particular charges has an important bearing on the scope of the issues the EEOC may raise on remand, we will address the treatment of each charge. Appellee urges that the “Dunavan” and “Williams group” charges are not available as a basis for suit by the EEOC. The “Dunavan” charge is a sex discrimination claim filed with the EEOC on February 17, 1971, and amended on April 26, 1971. A determination of reasonable cause to believe the charges are true was made on August 17, 1971. Appellee argues that there was no conciliation of this charge as required by Title VII. A review of the record, however, establishes that conciliation was attempted. The Dunavan charge" }, { "docid": "13326876", "title": "", "text": "5, 1974); EEOC v. Union Oil Co. of Cal., 369 F.Supp. 579 (N.D.Ala. 1974); EEOC v. Louisville & N. R. R., 368 F.Supp. 633 (N.D.Ala.1974); and EEOC v. Container Corp. of Am., 352 F.Supp. 262 (N.D.Fla.1972). Furthermore, another court within this circuit, when faced witli the identical issue here reached a conclusion at odds with the District Court in this case. EEOC v. Christianburg Garment Co., 376 F.Supp. 1067 (W.I).Va.1974). . Some have held that the Commission’s right to sue terminates only when an individual action is actually brought and restrict the individual to intervention as of right once a Commission action has commenced, even during the 90-day period. Others have indicated that the Commission is altogether barred from bringing suit during the individual’s 90-day period, but that the Commission’s right revives upon expiration of that period should the individual fail to act. See, EEOC v. Missouri Pac. R.R., 8 Cir., 493 F.2d 71 (1974); EEOC v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974); EEOC v. Cronin, 370 F.Supp. 579 (E.D.Mo. 1973); and EEOC v. Union Oil Co., 369 F. Supp. 579 (N.D.Ala.1974)." }, { "docid": "22428697", "title": "", "text": "EEOC v. Union Oil Co. of California, 369 F.Supp. 579 (N.D.Ala. 1974); EEOC v. Container Corp. of America, 352 F.Supp. 262 (M.D.Fla.1972); EEOC v. General Dynamics Corp., 382 F.Supp. 59 (N.D.Tex.1974). Decisions which have held to the contrary include EEOC v. Louisville & N. R.R., No. 74-1185, 505 F.2d 610 (5th Cir. 1974), rev’g 368 F.Supp. 633 (N.D.Ala. 1974); EEOC v. Cleveland Mills Co., 502 F.2d 153 (4th Cir. 1974), rev’g 364 F.Supp. 1235 (W.D.N.C.1973); EEOC v. U. S. Industries, Civil No. 73-283 (W.D.Tenn. Jan. 3, 1974); EEOC v. Christians-burg Garment Co., 376 F.Supp. 1067 (W.D.Va. 1974); EEOC v. E. 1. duPont de Nemours & Co., 373 F.Supp. 1321 (D.Del.1974); EEOC v. Hickey-Mitchell Co., 372 F.Supp. 1117 (E.D. Mo. 1973); EEOC v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974) appeal docketed, No. 74-1493 (5th Cir. Feb. 21, 1974); EEOC v. Bartenders Local 41, 369 F.Supp. 827 (N.D.Cal.1973); EEOC v. Eagle Iron Works, 367 F.Supp. 817 (S.D.Iowa 1973); EEOC v. Duff Brothers, 364 F.Supp. 405 (E.D.Tenn. 1973); EEOC v. Mobil Oil Corp., 362 F.Supp. 786 (W.D.Mo.1973); EEOC v. Western Electric Co., 382 F.Supp. 787 (D.Md.1974). . See also 118 Cong.Rec. 696 (1972) (remarks of Senator Dominick, introducing amendments which eventually became the basis for the EEOC’s enforcement powers). . See text supra at n. 4.. . See text supra at n. 4. . An understandable concern of employers is that without the 180-day limit, the EEOC may sue indefinitely based on a single charge, however stale and ancient. It is not unusual for a provision authorizing the federal government to enforce constitutional rights to have no statute of limitations attached. The public accommodations and public facilities sections of the 1964 Civil Rights Act, 42 U.S.C.A. §§ 2000a et seq., and 2000b et seq., contain no time limit for suit. See also United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1960); United States v. DeQueen & Eastern R.R., 271 F.2d 597 (8th Cir. 1959). Use of a truly “stale” charge will mean that injunctive relief is probably unwarranted under traditional equitable principles. Furthermore, Congress has" }, { "docid": "13326874", "title": "", "text": "in keeping with the Act and its purposes and equally effective in preventing duplicitous lawsuits, have been adopted by other courts when called upon to meet the problem of duplicitous actions. We need not now choose between those other alternatives, but their existence and apparent harmony with the legislative scheme refutes Cleveland’s contention that only by imposing a 180-day limitation on the Commission’s right to sue can the danger of duplicitous actions be avoided. We thus conclude that the 180-day period contained in 42 U.S.C.A. § 2000e-5(f) (1) is referable to the beginning of the time within which an aggrieved party may file a private action, but that its expiration does not finally terminate the Commission’s right of action. The decision of the District Court dismissing the Commission’s complaint for failure to timely file, therefore, is reversed and the case remanded for further proceedings. Reversed and remanded. . I\\L. 92-261, 86 Stat. 103 (1972). . 42 U.S.C.A. §§ 2000e et seq. . EEOC v. Cleveland Mills Co., W.D.N.C., 364 F.Supp. 1235. . 1972 U.S.Code Cong. & Admin.News pp. 2137, 2139-2141. . Id. at 2167-2176. . See tlie Conference Committee Section-by-Section Analysis of the Equal Employment Opportunity Act of 1972, 118 Cong.Rec.S. 3462 (March 6,1972). . See, House Report No. 92-238, 92d Cong., 1st Sess. 3-5, 12 (1971); and Senate Report No. 92-415, 92d Cong. 1st Sess. 5-6, 87 (1971). . 1972 U.S.Code Cong. & Admin.News 2137, 2139-2143. . Cases finding no limitation include: EEOC v. E. I. duPont de Nemours & Co., 373 F. Supp. 1321 (D.Del.1974); EEOC v. U. S. Industries, Civil No. 73-283 (W.D.Tenn.Jan. 1974); EEOC v. Huttig Sash and Door Co., 371 F.Supp. 848 (S.D.Ala.1974); EEOC v. Bartenders Int’l Union, Local 41, 369 F. Supp. 827 (N.D.Cal.1973); EEOC v. Eagle Iron Works, 367 F.Supp. 817 (S.I).Iowa 1973); EEOC v. Duff Brothers, Inc., 364 F.Supp. 405 (E.D.Tenn.1973); EEOC v. Mobil Oil Corp., 362 F.Supp. 786 (W.D.Mo. 1973). Cases finding a time limitation on the Commission’s right to sue include: EEOC v. Kimberly-Clark Corp., Civil No. 73-42 (W.D.Tenn.Mareh 27, 1974); EEOC v. Griffin Wheel Co., Civil No. 73-II-429-S (N.D.Ala.Feb." }, { "docid": "22428681", "title": "", "text": "be reversed in this respect. Appellee urges affirmance of the dismissal of Appellant’s complaint, nonetheless, on the ground that Tennessee’s one-year statute of limitations bars the EEOC’s complaint. We agree with the District Court that a state statute of limitations does not run against the EEOC in this case. The EEOC alleges company practices that violate Title VII. If its complaint is well-founded, it will be entitled to relief that will protect the interests of past, present, and future employees of Appellee, so that Appellant represents the interests of individuals who are not among the charging parties. Furthermore, the eradication of discrimination by race and sex promotes public interests and transcends private interests. Each step along the road to equal employment opportunity takes us closer to the goal of a truly open society, confining individuals only within boundaries set by their own talents and determination. As we wrote in Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969), “Title VII of the Civil Rights Act of 1964 should not be construed narrowly, and the Commission may, in the public interest, provide relief which goes beyond the limited interests of the charging parties.” Thus, the EEOC represents the public interest when it sues to enforce Title VII, not solely the interests of the private charging parties. In the absence of congressional intent to • apply state statutes of limitations, such restrictions do not apply to the EEOC. United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940); EEOC v. Christiansburg Garment Co., Inc., 376 F.Supp. 1067, 1071-73 (W.D.Va. 1974); EEOC v. Laacke & Joys Co., 375 F.Supp. 852, 853 (E.D.Wis.1974); EEOC v. Eagle Iron Works, 367 F.Supp. 817, 823-24 (S.D.Iowa 1973); EEOC v. Duff Brothers, Inc., 364 F.Supp. 405, 406-07 (E.D.Tenn.1973). The District Court held that two sets of charges (the “Dunavan” and “Williams group” charges) were available as a basis for the EEOC’s suit but for its conclusion on the 180-day provision. Since we reject the District Court’s construction of that provision and find no alternative basis for affirming the dismissal" }, { "docid": "23400370", "title": "", "text": "Charging Party, was completely adequate and in conformity with its regulations. 29 C.F.R. § 1601.25 (1972). As for the conditions precedent, it is clear that the Commission executed each step before filing suit. Defendant’s objection is actually to the difference between the initial charge of racial discrimination filed by Thomas and the Commission’s findings concerning use of arrest records and pre-employment tests. We find that objection to be without merit. See Sanchez v. Standard Brands, Inc., 5 Cir., 1970, 431 F.2d 455, 466. Finally, the charge of bad faith is simply not supported by the record. Our ruling at this phase of the case does not intimate any view on the merits. On remand the district court should consider whether there are equitable defenses available to defendants under the peculiar facts and circumstances that will be developed on the merits of the ease. Reversed and remanded. . A substantial majority of the courts that have considered the limitations issue have concluded that the statute contains no time limit. EEOC v. Cleveland Mills, 4 Cir., 1974, 502 F.2d 153; EEOC v. Western Electric Co., D.Md., 1974, 382 F.Supp. 787; EEOC v. Rollins, Inc., N.D.Ga., 1974 [Civ. No. 74-123, June 7, 1974]; EEOC v. Christiansburg Garment Co., W.D.Va., 1974, 376 F.Supp. 1067; EEOC v. E. I. DuPont de Nemours & Co., D.Del., 1974, 373 F.Supp. 1321; EEOC v. Huttig Sash and Door Co., S.D.Ala., 1974, 371 F.Supp. 848; EEOC v. U. S. Industries, W.D.Tenn., 1974 [Civ. No. 73-283, January 2, 1974]; EEOC v. Eagle Iron Works, S.D.Iowa, 1973, 367 F.Supp. 817; EEOC v. Duff Bros., Inc., E.D.Tenn., 1973, 364 F.Supp. 405; EEOC v. Mobil Oil Corp., W.D.Mo., 1973, 362 F.Supp. 786; EEOC v. Bartenders Int’l Union, etc., Local No. 41, N.D.Cal., 1973, 369 F.Supp. 827; EEOC v. Hickey-Mitchell Co., E.D.Mo., 1973, 372 F.Supp. 1117. See contra, EEOC v. General Dynamics Corp., N.D.Tex., 1974, 382 F.Supp. 59; EEOC v. Kimberly-Clark Corp., W.D.Tenn., 1974, 380 F.Supp. 1106; EEOC v. Birmingham Stove & Range Co., N.D.Ala., 1974 [Civ. No. 73-M-201, February 27, 1974]; EEOC v. Griffin Wheel Co., N.D. Ala., 1974 [Civ. No. 73-H-429-S, February" }, { "docid": "23400371", "title": "", "text": "502 F.2d 153; EEOC v. Western Electric Co., D.Md., 1974, 382 F.Supp. 787; EEOC v. Rollins, Inc., N.D.Ga., 1974 [Civ. No. 74-123, June 7, 1974]; EEOC v. Christiansburg Garment Co., W.D.Va., 1974, 376 F.Supp. 1067; EEOC v. E. I. DuPont de Nemours & Co., D.Del., 1974, 373 F.Supp. 1321; EEOC v. Huttig Sash and Door Co., S.D.Ala., 1974, 371 F.Supp. 848; EEOC v. U. S. Industries, W.D.Tenn., 1974 [Civ. No. 73-283, January 2, 1974]; EEOC v. Eagle Iron Works, S.D.Iowa, 1973, 367 F.Supp. 817; EEOC v. Duff Bros., Inc., E.D.Tenn., 1973, 364 F.Supp. 405; EEOC v. Mobil Oil Corp., W.D.Mo., 1973, 362 F.Supp. 786; EEOC v. Bartenders Int’l Union, etc., Local No. 41, N.D.Cal., 1973, 369 F.Supp. 827; EEOC v. Hickey-Mitchell Co., E.D.Mo., 1973, 372 F.Supp. 1117. See contra, EEOC v. General Dynamics Corp., N.D.Tex., 1974, 382 F.Supp. 59; EEOC v. Kimberly-Clark Corp., W.D.Tenn., 1974, 380 F.Supp. 1106; EEOC v. Birmingham Stove & Range Co., N.D.Ala., 1974 [Civ. No. 73-M-201, February 27, 1974]; EEOC v. Griffin Wheel Co., N.D. Ala., 1974 [Civ. No. 73-H-429-S, February 5, 1974] ; EEOC v. Union Oil of Cal., N.D. Ala., 1974, 369 F.Supp. 579. . Senator Javits, a leading proponent of the cease and desist format, also indicated that he believed the final version was to contain a limitation: Let us understand that we are dealing with a round period of approximately 150 days, that that is the allowable time for the Commission to move into a given situation. 118 Cong.Rec.S. 1800 (Feb. 15, 1972). A few days earlier, however, Senator Javits stated “I feel the Commission should not, in view of its purpose, be under the kind of strict timetable . . . that the amendment sets out that it would otherwise be if we left the word ‘shall’ which is mandatory.” (Referring to the passage “the Commission may bring a civil action” in Section 706(f)(1)). 118 Cong.Rec.S. 470 (Jan. 25, 1972). . We note that the 180-day limitation pressed by L & N would be far shorter than the limitations provided in many remedial statutes, ¿fee, e. g., the Clayton Act, 15" }, { "docid": "10894838", "title": "", "text": "period is not a statute of limitations restricting the right of the EEOC to file suit: Equal Employment Opportunity Commission v. Christiansburg Garment Co., 376 F.Supp. 1067 (W.D.Va.1974); Equal Employment Opportunity Commission v. E. I. duPont de Nemours & Co., 373 F.Supp. 1321 (D.Del.1974); Equal Employment Opportunity Commission v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974); Equal Employment Opportunity Commission v. United States Industries, Inc., 7 EPD ¶ 9068 (W. D.Tenn.1974); Equal Employment Opportunity Commission v. Eagle Iron Works, 367 F.Supp. 817 (S.D.Iowa 1973); Equal Employment Opportunity Commission v. Duff Bros., Inc., 364 F.Supp. 405 (E.D.Tenn. 1973); Equal Employment Opportunity Commission v. Hickey-Mitchell Co., 372 F. Supp. 1117 (E.D.Mo.1973); Equal Employment Opportunity Commission v. Mobil Oil Corp., 362 F.Supp. 786 (W.D.Mo.1973); Equal Employment Opportunity Commission v. Bartenders International Union, Local 41, 369 F.Supp. 827 (C.D.Cal.1973). Holding that the Commission is barred from bringing suit 180 days after a charge is filed are: Equal Employment Opportunity Commission v. United States Pipe & Foundry Co., 375 F.Supp. 237 (N.D.Ala.1974); Equal Employment Opportunity Commission v. Kimberly-Clark Corp., 7 FEP Cases 666 (W.D.Mo.1974); Equal Employment Opportunity Commission v. Berman Brothers Iron & Metal Co., 7 EPD ¶ 9212 (N.D.Ala.1974); Equal Employment Opportunity Commission v. Griffin Wheel Co., 7 EPD 9202 (N.D. Ala.1974); Equal Employment Opportunity Commission v. Union Oil Co. of California, 369 F.Supp. 579 (N.D.Ala.1974); Equal Employment Opportunity Commission v. Louisville & Nashville Railroad Co., 368 F.Supp. 633 (N.D.Ala.1974); Equal Employment Opportunity Commission v. Cleveland Mills Co., 364 F.Supp. 1235 (W.D.N.C.1973). . This Court is not the first to review the sufficiency of an EEOC investigation. In Equal Employment Opportunity Commission v. Hickey-Mitchell Co., 7 EPD ¶ 9400 (E. D.Mo.1974), the district court concluded that the Commission “made a sufficient effort to investigate the discrimination charge filed . . . .” It is noteworthy that the Commission in that case personally interviewed defendant’s personnel director, examined the personnel file of the charging party, interviewed the aggrieved employee’s supervisor, discussed promotion policies and racial make-up with the personnel director, and conducted a “walk through” visual inspection of defendant’s premises. None of this" }, { "docid": "21980843", "title": "", "text": "brief points out that Cunningham v. Litton Industries, 413 F.2d 887 (9th Cir. 1969), made it clear that this did not foreclose an aggrieved party from bringing suit within 30 days of receiving notice even if the EEOC took more than the suggested 60 days to send such notice. That case is cited for the proposition that since the 1972 amendments to Title VII gave the EEOC the right to sue, the Commission should be able to defer giving notice to a charging party until not only after it has failed to achieve conciliation, but also after it had determined whether or not it will file suit, regardless of the time period involved. The Commission candidly states that the purpose of the first notice letter is to allow a charging party the option of either requesting the right to sue immediately after conciliation efforts fail, or waiting indefinitely to see whether the Commission will sue the respondent itself. This may be their purpose but the letter is not so worded. It must first be pointed out that the purpose for the holding in Cunningham was to encourage private settlements by giving the EEOC an opportunity to attempt conciliation even if it took longer than 60 days to investigate the charges in sufficient detail to make such an attempt. Since the 1972 amendments were added, numerous decisions have held that the giving of statutory notice to a charging party does not halt the Commission’s own processes unless, of course, the charging party chooses to bring a private suit. See EEOC v. Bartenders Int’l Union, Local No. 41, 369 F.Supp. 827 (N.D.Cal.1973); EEOC v. Hickey-Mitehell, 372 F.Supp. 1117 (E.D.Mo.1973); EEOC v. Mobile Oil Corp., 362 F.Supp. 786 (W.D.Mo.1973); EEOC v. Huttig Sash and Door Company, 371 F.Supp. 848 (S.D.Ala.1974); EEOC v. Eagle Iron Works, 367 F.Supp. 817 (S.D.Iowa 1973); EEOC v. Duff Brothers, Inc., 364 F.Supp. 405 (E.D.Tenn. 1973). Therefore, there is no reason for the Commission to delay sending the notice. The issue in this case is only whether we are now going to ignore the ninety-day limitation on filing private" }, { "docid": "13326875", "title": "", "text": "& Admin.News pp. 2137, 2139-2141. . Id. at 2167-2176. . See tlie Conference Committee Section-by-Section Analysis of the Equal Employment Opportunity Act of 1972, 118 Cong.Rec.S. 3462 (March 6,1972). . See, House Report No. 92-238, 92d Cong., 1st Sess. 3-5, 12 (1971); and Senate Report No. 92-415, 92d Cong. 1st Sess. 5-6, 87 (1971). . 1972 U.S.Code Cong. & Admin.News 2137, 2139-2143. . Cases finding no limitation include: EEOC v. E. I. duPont de Nemours & Co., 373 F. Supp. 1321 (D.Del.1974); EEOC v. U. S. Industries, Civil No. 73-283 (W.D.Tenn.Jan. 1974); EEOC v. Huttig Sash and Door Co., 371 F.Supp. 848 (S.D.Ala.1974); EEOC v. Bartenders Int’l Union, Local 41, 369 F. Supp. 827 (N.D.Cal.1973); EEOC v. Eagle Iron Works, 367 F.Supp. 817 (S.I).Iowa 1973); EEOC v. Duff Brothers, Inc., 364 F.Supp. 405 (E.D.Tenn.1973); EEOC v. Mobil Oil Corp., 362 F.Supp. 786 (W.D.Mo. 1973). Cases finding a time limitation on the Commission’s right to sue include: EEOC v. Kimberly-Clark Corp., Civil No. 73-42 (W.D.Tenn.Mareh 27, 1974); EEOC v. Griffin Wheel Co., Civil No. 73-II-429-S (N.D.Ala.Feb. 5, 1974); EEOC v. Union Oil Co. of Cal., 369 F.Supp. 579 (N.D.Ala. 1974); EEOC v. Louisville & N. R. R., 368 F.Supp. 633 (N.D.Ala.1974); and EEOC v. Container Corp. of Am., 352 F.Supp. 262 (N.D.Fla.1972). Furthermore, another court within this circuit, when faced witli the identical issue here reached a conclusion at odds with the District Court in this case. EEOC v. Christianburg Garment Co., 376 F.Supp. 1067 (W.I).Va.1974). . Some have held that the Commission’s right to sue terminates only when an individual action is actually brought and restrict the individual to intervention as of right once a Commission action has commenced, even during the 90-day period. Others have indicated that the Commission is altogether barred from bringing suit during the individual’s 90-day period, but that the Commission’s right revives upon expiration of that period should the individual fail to act. See, EEOC v. Missouri Pac. R.R., 8 Cir., 493 F.2d 71 (1974); EEOC v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974); EEOC v. Cronin, 370 F.Supp. 579 (E.D.Mo. 1973); and" }, { "docid": "1737568", "title": "", "text": "court after exhaustion of all available administrative remedies. Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973) (Gesell, J.); Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Pointer v. Sampson, 62 F.R.D. 689 (D.D.C., 1974) (Gasch, J.). See also Thompson v. Department of Justice, 372 F.Supp. 762 (N.D.Cal.1974) [reversing prior decision in 360 F.Supp. 255]; Chandler v. Johnson, 7 (CCH) EPD ¶ 9139 (C.D.Cal.1973); Tomlin v. Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974); Gautier v. Weinberger, 6 (CCH) EPD ¶ 9001 (D.D.C.1973) (Gasch, J.); Williams v. Mumford, 6 FEP Cases 483 (D.D.C.1973) (Jones, J.). Contra, Henderson v. Defense Contract Administration Services Region New York, 370 F.Supp. 180 (S.D.N.Y.1973); Jackson v. U. S. Civil Service Commission, C.A. 72-H-1003 (S.D.Tex., filed Dec. 13, 1973); Griffin v. U. S. Postal Service, No. 72-487-Civ-J-T (M.D.Fla., filed Feb. 7, 1973). The review of the administrative record, after exhaustion of administrative remedies, does not contemplate a trial de novo. This conclusion is based upon the language of the 1972 Act, the legislative history and the reasoning of Hackley, Handy, Pointer and Thompson. There is ambiguous language in the legislative history which lends support to the argument which persuaded the Court to enter its Order of October 26, 1972, to the effect that employees of the Federal Government are to be treated in all respects the same as employees in the private sector, including a statutory right to á trial de novo. Such an argument, however, does, not withstand close scrutiny. The fact is that federal employees and employees in the private sector are treated differently by Congress under Title VII. In the case of the private employee, Congress designated the Equal Employment Opportunity Commission (EEOC) to settle his complaint, but in the ease of the federal employee Congress chose another route — i. e., it designated the Civil Service Commission (CSC) to consider the complaint. Where the voluntary informal efforts within the EEOC were unsuccessful in the private sector Congress gave the private employee immediate access to the Court and a trial de novo; but where the federal employee felt aggrieved, Congress designated CSC to mediate the" } ]

[ { "docid": "12897321", "title": "", "text": "L.Ed. 47 (1941). The requirement would be met if the parties were taken as aligned in the complaint, because Marguerite is a citizen of New York and United California Bank and Catherine McAndrew are both citizens of California. This alignment, however, is not binding on the courts. Id.; see, e.g., Eikel v. States Marine Lines, Inc., 473 F.2d 959, 963 (5th Cir.1973); Dryden v. Dryden, 265 F.2d 870, 873 (8th Cir. 1959). The courts, not the parties, are responsible for aligning the parties according to their interests in the litigation. Indianapolis, 314 U.S. at 69, 62 S.Ct. at 16. If the interests of a party named as a defendant coincide with those of the plaintiff in relation to the purpose of the lawsuit, the named defendant must be realigned as a plaintiff for jurisdictional purposes. Id. at 69-70, 62 S.Ct. at 16-17. Realignment may be required even if a diversity of interests exists on other issues. In Eikel, for instance, the Fifth Circuit aligned a lawyer with his ex-partners in a lawsuit against a client to recover their fee, even though the lawyer was apparently suing the others in state court over the division of the fee. See 473 F.2d at 964 & n. 6. In line with these principles the district court realigned Catherine as a plaintiff because it found that she had the same interest in this action as Marguerite. Indeed, the court found that Catherine, not Marguerite, was the “driving force” behind the action. Both Catherine and Marguerite would benefit from a decision against the Bank; both would receive a one-third interest in the renewal rights if the assignments were invalidated. Marguerite has offered no reason for us to distinguish Catherine’s personal interests from her interests as co-trustee, and to credit only the latter. Catherine, who in her answer to the complaint admitted all of Marguerite’s allegations, has pursued only her personal interests throughout the litigation. It was proper to classify her as a plaintiff. Catherine’s indispensability as a co-trustee does not preclude her realignment as a plaintiff. While Fed.R.Civ.P. 19 can require that indispensable parties be" } ]

[ { "docid": "20736125", "title": "", "text": "UWAG asserts that the district court abused its discretion in finding that its intervention would cause delay. “The denial of a Rule 24(b) motion is not usually appealable in itself, although the court may exercise its pendent appellate jurisdiction to reach questions that are inextricably intertwined with ones of which we have direct jurisdiction.” Section 4 Deadline Litig., 704 F.3d at 979. In at least two cases, however, we have declined to review the denial of a Rule 24(b) motion once we determined the potential interve-nor lacked standing. Id. at 980; In re Vitamins Antitrust Class Actions, 215 F.3d 26, 32 (D.C.Cir.2000) (“In view of the unresolved standing issue, however, we think it inappropriate to exercise our pendent jurisdiction.”). Here, too, given UWAG’s lack of Article III standing, we decline to reach the Rule 24(b) issue. a Even if it cannot intervene, UWAG asserts that we should nonetheless consider its arguments regarding the district court’s subject matter' jurisdiction. We disagree. “The power of federal courts to hear and decide cases is defined by Article III of the Constitution and by the federal statutes enacted thereunder.” Karcher v. May, 484 U.S. 72, 77, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987). We have jurisdiction over, inter alia, “appeals from all final decisions of the district courts.” 28 U.S.C. § 1291. “The rule that only parties to a lawsuit, or those that properly become parties, [e.g., through intervention,] may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam); see also id. “[W]e hold that because petitioners were not parties to the underlying lawsuit, and because they failed to intervene for purposes of appeal, they may not appeal from the consent decree approving that lawsuit’s settlement... cf Fed. R.App. P. 3(c)(1)(A) (“The notice of appeal must: specify the party or parties taking the appeal.... ”). There are a few exceptions to this general rule, e.g., if the district court order “effectively [binds] a non-party.” United States v. LTV Corp., 746 F.2d 51, 53 (D.C.Cir.1984). The exceptions “are limited,” however, and" }, { "docid": "23464998", "title": "", "text": "including objector Lazar, protested aspects of the proposed settlement. Plaintiffs furnished requested documents to Lazar’s counsel to explore the adequacy of the settlement. At the settlement hearing, counsel for Lazar and counsel for objectors Anne and Robert Klein argued against approval of the settlement. Shortly thereafter, the district court denied all objections, approved the settlement agreement, and awarded fees and expenses to plaintiffs’ counsel in the amount of $421,437.19 plus interest. Lazar and the Kleins now appeal. III. STANDING Plaintiffs contend Lazar lacks standing to appeal the district court’s order because La-zar is not a named party and failed to intervene under Fed.R.Civ.P. 24. Plaintiffs concede Lazar had standing to object to the settlement in the district court but contend he does not have standing to appeal from a court order approving the settlement. In their view, if Lazar believed his interests were inadequately protected by named plaintiffs, then he should have moved to intervene. Failure to intervene, they claim, constitutes an implicit admission that named plaintiffs adequately represented Lazar’s interests. Plaintiffs contend we should adopt a “no-intervention, no-standing” rule for appeals by unnamed members of class or derivative actions who object to settlement agreements. Generally, “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (1988) (per curiam); Fed.R.App.P. 3(c) (“The notice of appeal shall specify the party or parties taking the appeal”). But it is not settled whether an objecting member of the class or derivative litigation who is not a named party may appeal the court’s approval of the compromise. According to two leading treatises, “[a] member of the class who appears in response to the court’s notice, given pursuant to the Rule [23.1], and objects to the dismissal or compromise has a right to appeal from an adverse final judgment although he did not become a formal party of record.” 3B James W. Moore, Moore’s Federal Practice, ¶ 23.1.24[3] (objector’s right to appeal derivative suit settlement); ¶ 23.80[5] (objector’s right to appeal class action settlement) (1993);" }, { "docid": "5857722", "title": "", "text": "(10th Cir.1978) (holding that, under the pre-1986 version of the Act, the government is not a party for the purposes of Rule 4(a)(1) because its interest ends once it decides not to prosecute the action itself), cert. denied, 444 U.S. 839, 100 S.Ct. 77, 62 L.Ed.2d 50 (1979). But viewing the government as a party for the purposes of Rule 4(a)(1) does not compel us to treat it as a party for all appellate purposes. The Act forces the government to decide at the outset whether it wants to become an active litigant or to let the relator represent its interests. 31 U.S.C. § 3730(b)(2). It further allows the government to intervene at any time on a showing of good cause. 31 U.S.C. § 3730(c)(3). In short, its structure distinguishes between cases in which the United States is an active participant and cases in which the United States is a passive beneficiary of the relator’s efforts. When the government chooses to remain passive, as it has here, we see no reason to treat it as a party with standing to challenge the district court’s action as of right. Bortner argues that non-parties simply cannot appeal, and thus that the government cannot prosecute an appeal without first intervening. Read out of context, a few cases seem to announce such a rule. See, e.g., Marino v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (1988) (per curiam) (“[Bjecause petitioners were not parties to the underlying lawsuit, and because they failed to intervene for purposes of appeal, they may not appeal from the consent decree approving that lawsuit’s settlement....”); Edwards v. City of Houston, 78 F.3d 983, 993 (5th Cir.1996) (en banc) (“It is well-settled that one who is not a party to a lawsuit, or has not properly become a party, has no right to appeal a judgment entered in that suit.” (citing Marino)). We have enforced the rule with respect to nonnamed members of class actions. Walker v. City of Mesquite, 858 F.2d 1071, 1074 (5th Cir.1988) (“[Tjhe better practice ... is for nonnamed class members to file" }, { "docid": "4492255", "title": "", "text": "for the purpose of appeal only when they objected to a settlement approved by the district court. See, e.g., Robert F. Booth Trust v. Crowley, 687 F.3d 314, 319 (7th Cir.2012) (“Devlin holds that a member of a class certified under Rule 23, who asks the district court not to approve a settlement, need not intervene in order to appeal an adverse decision.”); Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1019 (9th Cir.2012) (“In Devlin, the Supreme Court considered whether a non-named, absent class member who objects to a settlement, but who cannot opt out because the class action was certified under Rule 23(b)(1), must intervene to appeal an objection overruled by the district court.”); Abeyta v. City of Albuquerque, 664 F.3d 792, 796 (10th Cir.2011) (“[T]he Devlin exception to the Marino [v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988)] rule will only apply where the nonparty has a unique interest in the litigation and becomes involved in the resolution of that interest in a timely fashion both at the district court level and on appeal.”); In re Orthopedic Bone Screw Prods. Liab. Li-tig., 350 F.3d 360, 363 n. 3 (3d Cir.2003) (“Objectors ... do not qualify as a party for purposes of appealing [an] original settlement,” when they “neither objected at the fairness hearing nor appealed the settlement, which is now final.”); In re Gen. Am. Life Ins. Co. Sales Practices Litig., 302 F.3d 799, 800 (8th Cir.2002) (“Devlin concerned the appellate rights of an unnamed class member who challenged the fairness of a settlement in a mandatory class action.”); cf. In re Lupron Mktg. & Sales Practices Litig., 677 F.3d 21, 29-30 (1st Cir.2012) (“The question ... becomes whether Devlin, which created an exception for unnamed class members who have objected to settlement agreements, extends to this situation in which unnamed class members have objected to a cy pres distribution.”). No circuit court has concluded that Devlin requires a federal court to treat a passive absent class member as a party for any purpose. This reading of Devlin makes sense in the" }, { "docid": "6789492", "title": "", "text": "EASTERBROOK, Circuit Judge. “The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled. The Court of Appeals suggested that there may be exceptions to this general rule, primarily ‘when the nonparty has an interest that is affected by the trial court’s judgment.’ We think the better practice is for such a nonparty to seek intervention for purposes of appeal; denials of such motions are, of course, appealable.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 587-88, 98 L.Ed.2d 629 (1988) (citations omitted). With these words the Supreme Court held that a person adversely affected by the settlement of a class action may appeal from the consent decree based on that settlement only if he has intervened as a party. See also Fed. R.App. P. 3(c): “A notice of appeal must specify the party or parties taking the appeal by naming each appellant in either the caption or the body of the notice of appeal.” (Emphasis added.) Following Marino we held that a class member in an action under Fed. R. Civ. P. 23 who has not become a party may not appeal from an order granting summary judgment to the defendant. In re Brand Name Prescription Drugs Antitrust Litigation, 115 F.3d 456 (7th Cir.1997). Today we consider another proposed exception to the rule stated in Marino. Courts have disagreed for several decades about whether class members (and shareholders, their counterparts in derivative actions under Rule 23.1) must intervene as parties in order to appeal from adverse decisions. See Comment, The Appealability of Class Action Settlements by Unnamed Parties, 60 U.Chi.L.Rev. 933 (1993). Until Marino this circuit permitted class members and stockholders to appeal, whether or not they had intervened, provided they had informed the district court of their objections to the decision that disadvantaged them. See Research Corp. v. Asgrow Seed Co., 425 F.2d 1059 (7th Cir.1970) (class action); Tryforos v. Icarian Development Co., 518 F.2d 1258, 1263 n. 22 (7th Cir.1975) (shareholders’ derivative suit). We held in Brand Name Prescription Drugs that in light of" }, { "docid": "1473038", "title": "", "text": "the quest for attorneys fees. See Bell Atlantic, supra, 2 F.3d at 1309, nn. 7-9. In the instant case, the motivating factor is the enforcement of antitrust laws by the States acting as parens patriae for their citizens. See In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 35 (2d Cir.1981), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983). Any potential beneficiary of the States’ efforts, who truly believes he can help the cause and further his own interests in the process, should not be averse to joining that effort through intervention. In Marino v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam), which involved a challenge to a consent decree approving settlement of a Title VII lawsuit against the City of New York, the petitioners appeared at the hearing in which the settlement was approved. They presented their objections to the decree but did not seek to intervene. The Supreme Court held that, because they did not intervene for purposes of appeal, they could not appeal. Id. at 304, 108 S.Ct. at 587. This, the Court said, complies with the “well-settled” rule that “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Id. Appellants contend that Marino “is inapplicable to parens patriae actions” (Appellants’ Br. at 4) and, seeking to support this argument, they cite two cases dealing with the res judicata effect of judgments in traditional parens patriae cases involving sovereign interests, Alaska Sport Fishing Ass’n v. Exxon Corp., 34 F.3d 769, 773 (9th Cir.1994) (per curiam) and Satsky v. Paramount Communications, Inc., 7 F.3d 1464 (10th Cir.1993). Satsky correctly states the rule applicable in these cases, viz, “When a state litigates common public rights, the citizens of that state are represented in such litigation by the state and are bound by the judgment.” Id. at 1470. The instant case does not present such a scenario. The purpose of Title III of Hart-Scott-Rodino, which provides for parens patriae actions by state attorneys general, was “to overcome obstacles to private class" }, { "docid": "8405246", "title": "", "text": "Elliott’s allegation is that Appellees are improperly calculating the royalty payment due Elliott — either by charging an unreasonable fee for a legitimate post-production cost or by charging a fee for an illegitimate post-production cost. Even assuming Appellees’ conduct is anticom-petitive, Elliott’s claimed injury does not stem from the “competition-reducing aspect or effect of [Appellees’] behavior.” Atlantic Richfield Co., 495 U.S. at 344, 110 S.Ct. 1884. Because we conclude that Elliott has not alleged an antitrust injury, its antitrust claims necessarily fail. Sharp, 967 F.2d at 406. The district court thus properly dismissed Elliott’s antitrust claims for failure to state a claim. D. Dichter’s Appeal In addition to appealing the denial of their motion to intervene, which we have dismissed as moot, see discussion supra Part III.A, Dichter, not a party to the original proceeding, is attempting to ap peal the final judgment entered in favor of Appellees. “The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam). In Devlin v. Scardel-letti, the Supreme Court excepted from this general rule unnamed class members who have objected to a class settlement at the fairness hearing because “[t]o hold otherwise would deprive nonnamed class members of the power to preserve their own interests in a settlement that will ultimately bind them, despite their expressed objections before the trial court.” 536 U.S. 1, 10, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002); see also In re Integra Realty Res., Inc., 354 F.3d 1246, 1256-58 (10th Cir.2004) (discussing the import of Dev-lin). Diehter is not objecting to a class settlement but instead attempting to challenge subject matter jurisdiction. This court must address subject matter jurisdiction regardless of Dichter’s appeal, thus the rationale behind the exception in Dev-lin does not apply. Moreover, because we have already granted Dichter’s motion to intervene in Elliott’s appeal and also determined that the district court erroneously relied on a theory of aggregation when it concluded subject matter jurisdiction existed over the putative" }, { "docid": "16101930", "title": "", "text": "issue of standing or the Guthrie decision, decided some six months earlier). The Fifth Circuit followed Guthrie in Walker v. City of Mesquite, 858 F.2d 1071 (5th Cir.1988). The court held that unnamed members of a certified plaintiff class lacked standing to challenge a consent decree that the district court had ordered approving a settlement between the named parties. Id. at 1072. The court held that the objectors’ alternative avenues of relief were to either move to intervene or to bring a separate suit in district court challenging the adequacy of the class representation. Id. at 1073-74. See also Baylor v. United States Dep’t of Housing & Urban Dev., 913 F.2d 223, 225 (5th Cir.1990); But see Kincade v. General Tire & Rubber Co., 635 F.2d 501, 504 (5th Cir.1981) (unnamed class member who objected to settlement appealed consent decree without opposition on basis of standing). Guthrie found support for its holding in Marino v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988), in which a consent decree approving the settlement of a Title VII lawsuit was challenged by individuals who were not parties to the underlying litigation. The certified class represented Hispanic police officers who claimed that a civil service examination they were required to take caused a disparate impact in promotion decisions. Hispanic Soc’y v. New York City Police Dep’t, 806 F.2d 1147, 1151 (2d Cir.1986). A group of police officers appealed the settlement eventually reached between the class and the city. The Supreme Court affirmed the dismissal of the appeal, stating: [W]e hold that because petitioners were not parties to the underlying lawsuit, and because they failed to intervene for purposes of appeal, they may not appeal from the consent decree approving that lawsuit’s settlement.... We think the better practice is for such a nonparty to seek intervention for purposes of appeal; denials of such motions are, of course, appealable. Marino, 484 U.S. at 304, 108 S.Ct. at 587-88. The Supreme Court was referring to officers who had filed objections to the settlement, and whose counsel was allowed to speak at the hearing and" }, { "docid": "16101929", "title": "", "text": "Id. With these legal avenues available, Guthrie concluded there was no need to allow a class member to appeal a judgment satisfactory to the class representatives and presumably the majority of class members. Id. Finally; Guthrie looked to the rationale for class actions: namely, • to render manageable litigation involving numerous class members who otherwise would all have access to the court through individual lawsuits. Id. at 629. If each class member could appeal individually, the litigation would become “unwieldy,” and the purpose of class actions would be defeated. Id. See also Shores v. Sklar, 844 F.2d 1485, 1491 (11th Cir.1988) (relying on Guthrie, court states that unnamed class member has no standing to appeal final judgment when named plaintiff does not appeal), cert. denied, 493 U.S. 1045, 110 S.Ct. 843, 107 L.Ed.2d 838 (1990) (subsequent history omitted). But see In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1542 (11th Cir.1987) (although court stated that class member may preserve appeal from class settlement by objecting to terms of settlement, none of the parties .raised issue of standing or the Guthrie decision, decided some six months earlier). The Fifth Circuit followed Guthrie in Walker v. City of Mesquite, 858 F.2d 1071 (5th Cir.1988). The court held that unnamed members of a certified plaintiff class lacked standing to challenge a consent decree that the district court had ordered approving a settlement between the named parties. Id. at 1072. The court held that the objectors’ alternative avenues of relief were to either move to intervene or to bring a separate suit in district court challenging the adequacy of the class representation. Id. at 1073-74. See also Baylor v. United States Dep’t of Housing & Urban Dev., 913 F.2d 223, 225 (5th Cir.1990); But see Kincade v. General Tire & Rubber Co., 635 F.2d 501, 504 (5th Cir.1981) (unnamed class member who objected to settlement appealed consent decree without opposition on basis of standing). Guthrie found support for its holding in Marino v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988), in which a consent decree approving the settlement of" }, { "docid": "1473039", "title": "", "text": "could not appeal. Id. at 304, 108 S.Ct. at 587. This, the Court said, complies with the “well-settled” rule that “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Id. Appellants contend that Marino “is inapplicable to parens patriae actions” (Appellants’ Br. at 4) and, seeking to support this argument, they cite two cases dealing with the res judicata effect of judgments in traditional parens patriae cases involving sovereign interests, Alaska Sport Fishing Ass’n v. Exxon Corp., 34 F.3d 769, 773 (9th Cir.1994) (per curiam) and Satsky v. Paramount Communications, Inc., 7 F.3d 1464 (10th Cir.1993). Satsky correctly states the rule applicable in these cases, viz, “When a state litigates common public rights, the citizens of that state are represented in such litigation by the state and are bound by the judgment.” Id. at 1470. The instant case does not present such a scenario. The purpose of Title III of Hart-Scott-Rodino, which provides for parens patriae actions by state attorneys general, was “to overcome obstacles to private class actions through enabling state attorneys general to function more efficiently as consumer advocates.” Cuisinarts, supra, 665 F.2d at 35. Appellants’ dissatisfaction with the combined efforts of the States’ attorneys general as the advocate of a large group of Reebok customers should not be permitted to nullify the attorneys general’s accomplishments without even becoming parties to the litigation. Settlement has been achieved and the settlement monies have been paid. We see no merit in appellants’ claim of standing. On the basis of this holding, we could conclude our review of the challenged settlement approval. However, in view of the differences in the circuits on the issue of the appellate standing of unidentified class action members, we deem it advisable also to review the merits of appellants’ claims, a procedure that other courts have followed for various expressed reasons. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589, 610 n. 19, 98 S.Ct. 1306, 1318 n. 19, 55 L.Ed.2d 570 (1978) (assuming arguendo that media had standing to object to deprivation of a defendant’s right to" }, { "docid": "15983326", "title": "", "text": "a class guardian appointed.” George also argued that a lodestar rather than a percentage of recovery calculation should be used to ascertain attorneys’ fees and that any percentage fee should be calculated from the net rather than the gross recovery. The district court approved the settlement agreement at the hearing and took the issue of attorneys’ fees under submission. In a written order dated October 29, the court granted lead counsel’s request for fees in the amount of thirty percent of the settlement plus expenses. The percentage fee was calculated based on the gross recovery. The order stated: “The court finds that the amount of fees awarded is fair and reasonable under the ‘percentage of recovery method.’ ” We have jurisdiction under 28 U.S.C. § 1291 to hear George’s timely appeal. II. Standing The named class members (collectively “Powers”) argue that George has no stand ing to object to the amount of attorneys’ fees because he did not move to intervene in the district court. George contends that Ninth Circuit precedent establishes his right to appeal. We reject both contentions. Neither Supreme Court authority, our own precedent, nor Rule 23 itself speaks to the issue before us. We have recently described this as an open question in our circuit. See Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1326 (9th Cir.1999). We decide it here. The general rule “that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam). In Marino, two independent minority groups brought Title VII actions against the City of New York alleging that the New York City Police Department’s police sergeant examination was discriminatory. Several groups intervened, a settlement was reached, and a consent decree was entered approving the settlement. Rather than intervene, a group of police officers filed a separate lawsuit after the interim approval of the settlement and before consent decree, claiming the settlement violated their equal protection rights under the Fourteenth Amendment. They also attempted to appeal from" }, { "docid": "7701638", "title": "", "text": "Reconsideration and Objection to Bill of Costs” to object to this court’s decision to remand, but since she was not a party, she could not file the objection. Ms. Bean did not seek certiorari in the Supreme Court. Instead, Ms. Bean returned to the district court to object and filed a “Special Appearance to Object to Subject Matter Jurisdiction,” asking the district court to vacate this court’s order for lack of jurisdiction. The district court instead followed this court’s mandate, vacated the lien, and ordered disbursement of the funds to Mr. Livingston. Ms. Bean now appeals. Discussion We must first address whether Ms. Bean, as a non-party, can pursue this appeal. “The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988). However, there is an exception to this rule in certain cases where the non-party possesses a “unique interest” in the outcome of the case and actively participates in the proceedings relating to that interest. For instance, in Plain v. Mur phy Family Farms, 296 F.3d 975 (10th Cir.2002), we found a decedent’s heirs to have a unique interest — analogous to the interest of unnamed members of a class— permitting them to appeal from an order apportioning damages in a wrongful death action they had opposed even though they had not formally intervened. Cf Devlin v. Scardelletti, 536 U.S. 1, 14, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002) (holding that unnamed class members who object in a timely manner may appeal from the district court’s approval of a settlement even if they have not intervened). We noted in Plain that “to deny the [nonparty heirs] the right of appellate review would be, in effect, to deny them the right to challenge a binding division of damages which they timely opposed by invitation in the district court, and appealed at the earliest opportunity.” Plain, 296 F.3d at 980 (emphasis added). The nonparty heirs in Plain also requested review of the district court’s denial of" }, { "docid": "16405968", "title": "", "text": "also In re Exxon Valdez, 239 F.3d 985, 987 (9th Cir.2001) (concluding that a litigant had standing to appeal because it was “a party to this case from the beginning” and “contends that it is aggrieved by the district court’s order”). Mutual clearly satisfies these requirements because it was both a party of record when the district court entered its preliminary injunction and the intended beneficiary of the enjoined LOC. See Lueker v. First Nat’l Bank of Boston (Guernsey) Ltd., 82 F.3d 334, 337 (10th Cir.1996) (observing that an LOC beneficiary had standing to appeal from an injunction entered against a co-defendant bank under similar circumstances); Andy Marine, Inc. v. Zidell, Inc., 812 F.2d 534 (9th Cir.1987) (exercising jurisdiction over an LOC beneficiary’s appeal from a district court order, which enjoined a bank from honoring the beneficiary’s draft). The Hendricks also contend that Mutual lacks standing to appeal because it steadfastly contested personal jurisdiction in the Central District of California, but they cite no authority which supports this argument. Were we to treat personal jurisdiction defenses under Federal Rule of Civil Procedure 12(b)(2) as waivers of appellate standing, we would essentially immunize district courts’ personal jurisdiction determinations from appellate scrutiny — an untenable proposition, to be sure. We recognize, of course, that a nonparty generally cannot simultaneously challenge personal jurisdiction and assert standing to appeal. “The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam). For this reason, an interested LOC beneficiary who “deliberately [chooses] to remain a nonparty” lacks standing to appeal from a district court order which permanently enjoined a bank from making payment on the LOC. Citibank Int’l v. Collier-Traino, Inc., 809 F.2d 1438, 1439-41 (9th Cir.1987). However, Mutual was a party to the district court proceedings and was aggrieved by the preliminary injunction. It therefore has standing to appeal the injunction. See Goldie’s Bookstore, Inc., 739 F.2d at 468 n. 2. We hold, therefore, that Mutual has standing" }, { "docid": "15983327", "title": "", "text": "appeal. We reject both contentions. Neither Supreme Court authority, our own precedent, nor Rule 23 itself speaks to the issue before us. We have recently described this as an open question in our circuit. See Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1326 (9th Cir.1999). We decide it here. The general rule “that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam). In Marino, two independent minority groups brought Title VII actions against the City of New York alleging that the New York City Police Department’s police sergeant examination was discriminatory. Several groups intervened, a settlement was reached, and a consent decree was entered approving the settlement. Rather than intervene, a group of police officers filed a separate lawsuit after the interim approval of the settlement and before consent decree, claiming the settlement violated their equal protection rights under the Fourteenth Amendment. They also attempted to appeal from the consent decree itself. Addressing whether Petitioners had standing to appeal the consent decree, the Supreme Court held that “because petitioners were not parties to the underlying lawsuit, and because they failed to intervene for purposes of appeal, they may not appeal from the consent decree approving that lawsuit’s settlement.” Id. The Court noted the circuit court’s suggestion that “there may be exceptions to this general rule, primarily ‘when the nonparty has an interest that is affected by the trial court’s judgment,’ ” but held that “the better practice is for such a nonparty to seek intervention for purposes of appeal.” Id. (citation omitted). Powers asserts that Manno controls the standing issue here. He relies on decisions in the Fifth, Sixth, Seventh, and Eighth Circuits which have extended Mar-ino to block the appeals of unnamed class members in Rule 23 actions failed to intervene in the district court. See Walker v. City of Mesquite, 858 F.2d 1071, 1074 (5th Cir.1988) (holding that “[i]n Manno, the Supreme Court concluded that individuals who were nonparties and who" }, { "docid": "20736126", "title": "", "text": "of the Constitution and by the federal statutes enacted thereunder.” Karcher v. May, 484 U.S. 72, 77, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987). We have jurisdiction over, inter alia, “appeals from all final decisions of the district courts.” 28 U.S.C. § 1291. “The rule that only parties to a lawsuit, or those that properly become parties, [e.g., through intervention,] may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam); see also id. “[W]e hold that because petitioners were not parties to the underlying lawsuit, and because they failed to intervene for purposes of appeal, they may not appeal from the consent decree approving that lawsuit’s settlement... cf Fed. R.App. P. 3(c)(1)(A) (“The notice of appeal must: specify the party or parties taking the appeal.... ”). There are a few exceptions to this general rule, e.g., if the district court order “effectively [binds] a non-party.” United States v. LTV Corp., 746 F.2d 51, 53 (D.C.Cir.1984). The exceptions “are limited,” however, and “the fact that a decision against a defendant may practically [affect] a third party is not ordinarily enough for appellant status absent intervention or joinder in the trial court.” Nat’l Ass’n of Chain Drug Stores v. New England Carpenters Health Benefits Fund, 582 F.3d 30, 41 (1st Cir.2009); see also Marino, 484 U.S. at 304, 108 S.Ct. 586 (“[T]he better practice is for such a non-party to seek intervention for purposes of appeal.... ”). Because a party unsuccessfully appealing a denial of intervention is not a “party,” it may not obtain review of any district court holding other than the denial of intervention. See Section 4 Deadline Litig., 704 F.3d at 980 (affirming denial of intervention and thus not “reaching the Safari Club’s objections to the settlement agreements”); Veneman, 262 F.3d at 406 (“[Bjecause the district court correctly denied intervention, NABR is not a party to the action and lacks standing to appeal from either the stipulation of dismissal or the order denying its Rule 60(b) motion, which challenged the stipulated dismissal.”); United States v." }, { "docid": "23464999", "title": "", "text": "adopt a “no-intervention, no-standing” rule for appeals by unnamed members of class or derivative actions who object to settlement agreements. Generally, “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (1988) (per curiam); Fed.R.App.P. 3(c) (“The notice of appeal shall specify the party or parties taking the appeal”). But it is not settled whether an objecting member of the class or derivative litigation who is not a named party may appeal the court’s approval of the compromise. According to two leading treatises, “[a] member of the class who appears in response to the court’s notice, given pursuant to the Rule [23.1], and objects to the dismissal or compromise has a right to appeal from an adverse final judgment although he did not become a formal party of record.” 3B James W. Moore, Moore’s Federal Practice, ¶ 23.1.24[3] (objector’s right to appeal derivative suit settlement); ¶ 23.80[5] (objector’s right to appeal class action settlement) (1993); 7C Charles A. Wright, et al., Federal Practice & Procedure, § 1839, at 182 (1986) (“[a]n objector to the settlement may appeal the court’s approval of the compromise”); see also Webcor Elecs. v. Whiting, 101 F.R.D. 461, 465 n. 11 (D.Del.1984) (“The law is now settled that objectors may appeal a court’s decision approving a settlement”). Notwithstanding these certitudes, the Fifth, Eighth, and Eleventh Circuits have ruled that an unnamed class member lacks standing to appeal an order approving a settlement between the named parties of a class action suit. See Loran v. Furr’s/Bishop’s Inc., 988 F.2d 554, 554 (5th Cir.1993) (appellate court lacks jurisdiction to consider appeal by class member who has not attempted to intervene as a named party); Croyden Assocs. v. Alleco, Inc., 969 F.2d 675, 679 (8th Cir.1992) (“unnamed class members who object to a settlement must move to intervene, and they will be denied standing to appeal when they have not done so”), cert. denied, — U.S. -, 113 S.Ct. 1251, 122 L.Ed.2d 650 (1993); Walker v. City of Mesquite," }, { "docid": "5857723", "title": "", "text": "a party with standing to challenge the district court’s action as of right. Bortner argues that non-parties simply cannot appeal, and thus that the government cannot prosecute an appeal without first intervening. Read out of context, a few cases seem to announce such a rule. See, e.g., Marino v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (1988) (per curiam) (“[Bjecause petitioners were not parties to the underlying lawsuit, and because they failed to intervene for purposes of appeal, they may not appeal from the consent decree approving that lawsuit’s settlement....”); Edwards v. City of Houston, 78 F.3d 983, 993 (5th Cir.1996) (en banc) (“It is well-settled that one who is not a party to a lawsuit, or has not properly become a party, has no right to appeal a judgment entered in that suit.” (citing Marino)). We have enforced the rule with respect to nonnamed members of class actions. Walker v. City of Mesquite, 858 F.2d 1071, 1074 (5th Cir.1988) (“[Tjhe better practice ... is for nonnamed class members to file a motion to intervene and then, upon the denial of that motion, appeal to this Court.” (citing Mari-no)). But the structure of class actions differs from the structure of qui tam actions. As the Walker court noted, allowing non-named class members to appeal a final judgment could frustrate the Rule 23 mechanism by making class actions unwieldy and less productive. 858 F.2d at 1074. Class actions involve many unnamed class members, and giving each a right to appeal could result in a confusing and unmanageable appellate pro cess. Furthermore, a nonnamed class member can protect his interest by mounting a collateral attack. Litigation conducted en masse presents different problems and calls for different rules than litigation conducted on behalf of a single entity such as the United States government. Outside of the class-action context, the rule on non-party appeals is not as rigid as Bort-ner and Philips contend. Although we dismissed a would-be non-party appellant in EEOC v. Louisiana Office of Community Services, 47 F.Sd 1438, 1442-43 (5th Cir.1995), we inquired whether “the non-parties actually" }, { "docid": "4602860", "title": "", "text": "as a party and the Administration was omitted. If anything, the appropriateness of the Administration’s standing to appeal is even stronger in this case than in Karaha Bo-das, because it is the Administration’s property at stake. The Administration, as the entity that manages the funds, has an even more direct interest in the property deemed subject to attachment and execution than the Republic of Indonesia had in Karaha Bodas. GMO argues that where a proposed appellant had an opportunity to intervene but failed to do so before the district court, the nonparty does not have standing to appeal, even if it has an interest affected by the district court’s judgment. Relying on a Supreme Court case, Marino v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988), GMO argues that, for policy reasons, the Administration should not reap the benefit of being allowed to make arguments on appeal where it failed to intervene in the district court proceedings. In Marino, petitioners, a group of individuals who claimed to have been adversely affected by a settlement in an employment discrimination case, chose not to intervene in the district court proceedings. Id. at 303, 108 S.Ct. 586. Instead, the petitioners filed their action during the time between the district court’s interim approval of a settlement and its issuance of a final consent decree. Id. The district court dismissed the petitioners’ action, and the court of appeals upheld the dismissal, holding that it constituted an impermissible collateral attack on a consent decree by persons who could have intervened in the action but chose not to. Id. at 303-04, 108 S.Ct. 586. The issue in that case was whether the district court may dismiss an impermissible collateral attack by non-parties. Id. at 304, 108 S.Ct. 586. The Court affirmed the district court’s disallowance of the action by the petitioners. Id. (stating “[w]e think the better practice [than to allow a nonparty to appeal in an action like Marino ] is for such a nonparty to seek intervention for purposes of appeal; denials of such motions are, of course, appeal-able”). The Administration’s interest" }, { "docid": "17918264", "title": "", "text": "Marino. The appeal in Hispanic Society was dismissed because appellants in that case were not parties to the litigation, and therefore, lacked standing to prosecute the appeal. Hispanic Society of the New York City Police Dep’t v. New York City Police Dep’t. 806 F.2d 1147, 1154 (2d Cir.1986). The Court of Appeals noted that the Hispanic Society appellants’ lack of standing stemmed from “their steadfast refusal to comply with the requirements of intervention set forth in Fed.R.Civ.P. 24,” and formally intervene in the case. Id. at 1153-54. The dismissal of the complaint in Marino was affirmed on the ground that the suit constituted an impermissible collateral attack on a consent decree. Marino v. Ortiz, 806 F.2d 1144, 1147 (2d Cir.1986). The Court of Appeals in Marino pointed out that appellants not only had notice of the proceedings in Hispanic Society, but actually presented their claims at the fairness hearing held in that case. The Second Circuit’s decision in Marino was affirmed by an equally divided Supreme Court, and its decision in Hispanic Society was upheld. Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (per curiam), reh’g denied, 484 U.S. 1082, 108 S.Ct. 1064, 98 L.Ed.2d 1026 (1988). The following term the Supreme Court, in Martin v. Wilks, 490 U.S. 755, 769, 109 S.Ct. 2180, 2188, 104 L.Ed.2d 835 (1989), held that a non-party’s challenge to actions taken pursuant to a consent decree does not constitute an impermissible “collateral attack” on the decree. The Marino plaintiffs then moved in the Second Circuit for an enlargement of time in which to file a petition for rehearing. The Second Circuit denied the request, stating, “[t]he motion for enlargement of time is nothing but an attempt to reopen a final judgment because of a subsequent change in the law.” Marino v. Ortiz, 888 F.2d 12, 13 (2d Cir.1989), cert. denied, 495 U.S. 931, 110 S.Ct. 2172, 109 L.Ed.2d 501 (1990). The Court noted that plaintiffs in that case had made no showing of a manifest or intolerable injustice: Indeed, they were fully aware of the proceedings leading up" }, { "docid": "11127937", "title": "", "text": "set forth below, we reject Company Doe’s arguments and deny its motion to dismiss the appeal. A. As a general rule, only named parties to the case in the district court and those permitted to intervene may appeal an adverse order or judgment. See Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam). Indeed, it is typically only parties who are bound by a judgment and sufficiently aggrieved by it who possess constitutional and prudential standing to seek appellate review of the district court’s decision. See Newberry v. Davison Chem. Co., 65 F.2d 724, 729 (4th Cir.1933) (“[I]t is only a party affected by an order or decree who may appeal from it.”). In this case, however, we have no appeal from a named party or successful intervenor. The Commission and its chairwoman were the only named party-defendants to the underlying proceedings, and they abandoned their appeal of the district court’s judgment in favor of Company Doe. Although Consumer Groups sought intervention before the district court, the court denied the motion to intervene. Thus, because Consumer Groups were neither parties to, nor inter-venors in, the proceedings before the district court, Company Doe argues that no case or controversy exists and that we lack authority to hear Consumer Groups’ challenge to the district court’s sealing and pseudonymity orders. Whether Consumer Groups may appeal the sealing and pseudonymity orders rests, in part, upon the propriety of the district court’s denial of Consumer Groups’ motion to intervene. That is, Consumer Groups have standing to appeal the denial of their intervention motion, see Hill v. W. Elec. Co., 672 F.2d 381, 385-86 (4th Cir.1982), and if we conclude the district court erred in its decision to deny intervention, then Consumer Groups’ newfound intervenor status in light of our holding would supply an ongoing, adversarial case or controversy, thereby allowing us to review Consumer Groups’ challenges to the district court’s sealing and pseudonymity rulings, see Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 34, 114 S.Ct. 425, 126 L.Ed.2d 396 (1993) (per curiam) (dismissing" } ]

[ { "docid": "19734360", "title": "", "text": "there until 5:45 he would conform to the normal 8 hour work day. This latter situation is approved as it is done for the convenience of the Service. Also you are requested to sign out on the Form 23-A at the time of your aetual appointment. For example, if your appomtment does not begin until 8:30 do not sign out as being at the taxpayer's at 8:00 a.m. Sign out for the actual time of your appointment. (Emphasis supplied.) Other memoranda in the record indicate the supervisor’s continuing concern — obsession, if you like — with the accuracy of the sign-out sheets and that each field agent work his full hours of duty. These communications were not a general admonition to avoid sin, but comprised specific warnings regarding the exact case plaintiff claims is so trivial as to not require emphasis. The IRS is rightly concerned with its image of honesty and integrity. Members of the public, who must turn square corners in tax matters, demand no less of revenue officials. Section 1942.55 of the Rules of Conduct makes this clear and provides a stem warning of “severe disciplinary action and prosecution” for failure to be truthful in all matters of official interest, including work reports of any nature, and vouchers. Plaintiff says that for a first offense, removal is inappropriate, but by Section 1982.8(1) of the Internal Revenue Manual, “Removal action will be taken” for an offense “when a previously administered oral admonishment has not served to prevent a repetition”. That is this case. Plaintiff seems to have supposed that as a professional man, literal adherence to time reporting requirements was not for him, and any fiction for the record would suffice. As a lawyer, he must have understood the risk of adhering to this view in face of express warnings and admonitions. The test, in weighing the penalty against the offense, was laid ont in Heffron v. United States, 186 Ct. Cl. 474, 485, 405 F. 2d 1307, 1312 (1969): * * * if we are to [find the penalty too harsh], it must be because we find" } ]

[ { "docid": "15475129", "title": "", "text": "plaintiff says that, while in other cases the premise that willful, flagrant violation of tax laws by IRS officers charged with enforcing those laws may have a rational connection to their continued employment and to the effectiveness of a voluntary compliance system, it is not true here. Plaintiff’s argument is that IRS permits other taxpayers to do without penalty what plaintiff did, to wit: fail to file timely where no tax is due or a refund is due. It is true that section 5(11)31.2(6) of the IRS manual allows a revenue officer to close a delinquent taxpayer’s case in such circumstances. However, the revenue code makes it plain that citizens “shall” file their returns. 26 U.S.C. § 6012(a) (1970). This is elementary under a voluntary reporting system. The accounting and auditing procedures under the system flow from it. Where plaintiff’s argument breaks down is in assuming that he is above participating in this system. Yet, how must it appear to plaintiff’s fellow workers, to revenue officials of his state, and to other members of the taxpaying public who know of it, that an agent of IRS evaded compliance with so elementary, but fundamental, a requirement of the income tax system? The IRS collection division chief testified that conduct such as plaintiff’s would have a deleterious effect upon the morale of other IRS personnel and upon the respect which other Government agencies and the public had for IRS. We conclude that this is substantial evidence upon which the ARB could reasonably conclude that considerations of the efficiency of the service justified, if not mandated, plaintiff’s discharge. As we said in Birnholz v. United States, 199 Ct.Cl. 532, 537 (1972): The IRS is rightly concerned with its image of honesty and integrity. Members of the public, who must turn square corners in tax matters, demand no less of revenue officials. * * *. Nor is plaintiff excused by the procedure contained in the IRS manual, for that simply permits a revenue officer reviewing a taxpayer’s account to dispense, in his discretion, with the formal disclosure once he is satisfied that he knows" }, { "docid": "15475128", "title": "", "text": "the same conclusion squarely applicable to the facts of the instant ease. In short, in administrative review of his removal, plaintiff was accorded hearings, and they suffice for due process. The cause for his removal was ascertained under applicable procedures of the statute and avoided any “stigma” .which would otherwise result from an arbitrary, improper discharge. Plaintiff argues that his “liberty” interest is infringed because he is entitled to be free from the stigma of the dismissal itself, but Arnett disposes of this by showing that the post termination appeal procedures have vindicated plaintiff’s right to protect whatever liberty or property interests he has in this situation. Cases relied upon by plaintiff, none of which involve federal employees like plaintiff whose rights relate to the Lloyd-LaFollette Act, are deemed not to be in point. Plaintiff next attacks the ARB decision as lacking in supporting evidence. He says defendant has failed to prove that his removal, for admitted failure to file tax returns, would “promote the efficiency of the service.” 5 U.S.C. § 7501(a) (1970). Further, plaintiff says that, while in other cases the premise that willful, flagrant violation of tax laws by IRS officers charged with enforcing those laws may have a rational connection to their continued employment and to the effectiveness of a voluntary compliance system, it is not true here. Plaintiff’s argument is that IRS permits other taxpayers to do without penalty what plaintiff did, to wit: fail to file timely where no tax is due or a refund is due. It is true that section 5(11)31.2(6) of the IRS manual allows a revenue officer to close a delinquent taxpayer’s case in such circumstances. However, the revenue code makes it plain that citizens “shall” file their returns. 26 U.S.C. § 6012(a) (1970). This is elementary under a voluntary reporting system. The accounting and auditing procedures under the system flow from it. Where plaintiff’s argument breaks down is in assuming that he is above participating in this system. Yet, how must it appear to plaintiff’s fellow workers, to revenue officials of his state, and to other members of the" }, { "docid": "21141069", "title": "", "text": "hearing that, although the regulations plainly required the distances to be measured in straight lines, he had deliberately not used that method but had instead employed his own estimate of the time he spent on the road. This admission was clearly substantial enough support for the charge of deliberately creating a deduction where none could lawfully be taken. A barrage of procedural complaints is levied against the charges and the administrative proceedings, but none is sufficient to vitiate the determination of removal. We put to one side general arguments which have been authoritatively rejected, such as that the employee is entitled to all the protections of a criminal trial (see Arnett v. Kennedy, 416 U.S. 134 (1974)), and that hearsay is inadmissible (see Peters v. United States, 187 Ct. Cl. 63, 70-71, 408 F. 2d 719, 722-23 (1969)). The points we now consider are those tied specifically to these particular proceedings. As we have already indicated, plaintiff understood and was made to understand the crux of the allegations against him, and was not misled by the possibility that he was merely being charged with having made innocent or negligent errors in his tax returns. It is settled, too, that the general standard of promoting the efficiency of the service is adequate for removal or discipline (Arnett v. Kennedy, supra, 416 U.S. 134, 161 (1974)), and in this instance we think that there can be no doubt that it promotes the efficiency of the civil service to proceed against an IRS tax technician — responsible for overseeing other taxpayers’ returns — who deliberately or recklessly overstates his own deductions. “The IRS is rightly concerned with its image of honesty and integrity. Members of the public, who must turn square con- ners in tax matters, demand no less of revenue officials.” Birnholz v. United States, 199 Ct. Cl. 532, 537 (1972); see also Kandall v. United States, 186 Ct. Cl. 900, 935, cert. denied, 396 U.S. 837 (1969). Promotion of the “efficiency of the service” is not restricted to testing the employee’s work-efficiency or his performance on the job. See Arnett v." }, { "docid": "4418653", "title": "", "text": "the instant case. In short, in administrative review of his removal, plaintiff was accorded hearings, and they suffice for due process. The cause for his removal was ascertained under applicable procedures of the statute and avoided any \"stigma” which would otherwise result from an arbitrary, improper discharge. Plaintiff argues that his \"liberty” interest is infringed because he is entitled to be free from the stigma of the dismissal itself, but Arnett disposes of this by showing that the post termination appeal procedures have vindicated plaintiffs right to protect whatever liberty or property interests he has in this situation. Cases relied upon by plaintiff, none of which involve federal employees like plaintiff whose rights relate to the Lloyd-LaFollette Act, are deemed not to be in point. Plaintiff next attacks the ARB decision as lacking in supporting evidence. He says defendant has failed to prove that his removal, for admitted failure to file tax returns, would \"promote the efficiency of the service.” 5 U.S.C. § 7501(a) (1970). Further, plaintiff says that, while in other cases the premise that willful, flagrant violation of tax laws by IRS officers charged with enforcing those laws may have a rational connection to their continued employment and to the effectiveness of a voluntary compliance system, it is not true here. Plaintiffs argument is that IRS permits other taxpayers to do without penalty what plaintiff did, to wit: fail to file timely where no tax is due or a refund is due. It is true that section 5(11)31.2(6) of the IRS manual allows a revenue officer to close a delinquent taxpayer’s case in such circumstances. However, the revenue code makes it plain that citizens \"shall” file their returns. 26 U.S.C. § 6012(a) (1970). This is elementary under a voluntary reporting system. The accounting and auditing procedures under the system flow from it. Where plaintiffs argument breaks down is in assuming that he is above participating in this system. Yet, how must it appear to plaintiffs fellow workers, to revenue officials of his state, and to other members of the taxpaying public who know of it, that an agent" }, { "docid": "22457606", "title": "", "text": "certainly long been enforcing the Commissioner’s summons, and have considered it an acceptable way of ensuring compliance with the revenue laws. See Sale v. United States, 8 Cir.1956, 228 F. 2d 682, 684, cert. denied, 1956, 350 U.S. 1006, 76 S.Ct. 650, 100 L.Ed. 868. See generally Powell. The individual taxpayer on whom an audit has focussed is no doubt reluctant to see his records disclosed to the taxing authorities, but we are unable to say that the public has exhibited a strong animosity toward this method of securing proper compliance with the revenue laws. The significance of the public interest, governmental revenue, is beyond dispute. The fact is that Congress built the tax code upon the principle of self-assessment and voluntary compliance with the Code’s rules and regulations. To determine deviations from its rules, the IRS must place unusual reliance upon the taxpayer’s own records and statements. The final factor, the invasion of privacy, is difficult to evaluate. In Ca-mara the Court noted that the search there was neither criminally oriented nor personal in nature. . Although the IRS summons does not involve a search of the person of the taxpayer but an examination of his papers and his testimony, typically it is unclear whether a given tax investigation will lead to criminal proceedings. The IRS often must see the taxpayer’s records before it can make that determination. Powell, 379 U.S. at 53-54, 85 S.Ct. 248. But in balancing the need to investigate against the invasion, we conclude that the resolution reached in Powell is still correct. Like the Camara housing inspections, the effective operation of the revenue system requires that the Commissioner be free to inspect taxpay ers’ records in order to ensure compliance with the revenue laws. Furthermore, courts may limit the invasion of privacy through the judicial scrutiny to which a summons is subject for its enforcement and through the standards enumerated in Powell of legitimate purpose, proper procedure, relevance, and refusal to allow abuse of the courts’ process. Thus, although our reiteration in Venn v. United States, 5 Cir.1968, 400 F.2d 207, 210, of Powell’s" }, { "docid": "4418654", "title": "", "text": "that willful, flagrant violation of tax laws by IRS officers charged with enforcing those laws may have a rational connection to their continued employment and to the effectiveness of a voluntary compliance system, it is not true here. Plaintiffs argument is that IRS permits other taxpayers to do without penalty what plaintiff did, to wit: fail to file timely where no tax is due or a refund is due. It is true that section 5(11)31.2(6) of the IRS manual allows a revenue officer to close a delinquent taxpayer’s case in such circumstances. However, the revenue code makes it plain that citizens \"shall” file their returns. 26 U.S.C. § 6012(a) (1970). This is elementary under a voluntary reporting system. The accounting and auditing procedures under the system flow from it. Where plaintiffs argument breaks down is in assuming that he is above participating in this system. Yet, how must it appear to plaintiffs fellow workers, to revenue officials of his state, and to other members of the taxpaying public who know of it, that an agent of IRS evaded compliance with so elementary, but fundamental, a requirement of the income tax system? The IRS collection division chief testified that conduct such as plaintiffs would have a deleterious effect upon the morale of other IRS personnel and upon the respect which other Government agencies and the public had for IRS. We conclude that this is substantial evidence upon which the ARB could reasonably conclude that considerations of the efficiency of the service justified, if not mandated, plaintiffs discharge. As we said in Birnholz v. United States, 199 Ct. Cl. 532, 537 (1972): The IRS is rightly concerned with its image of honesty and integrity. Members of the public, who must turn square corners in tax matters, demand no less of revenue officials. * * *. Nor is plaintiff excused by the procedure contained in the IRS manual, for that simply permits a revenue officer reviewing a taxpayer’s account to dispense, in his discretion, with the formal disclosure once he is satisfied that he knows the taxpayer’s financial picture and that no tax" }, { "docid": "19019031", "title": "", "text": "Denver District Collection Division, IRS, was submitted to the District Court in support of the application filed by the United States Attorney for “tax entry” orders in the case involving appellee Carlson. The affidavit stated that Carlson had failed to pay income tax and Federal Insurance Contribution Act (Social Security) withholding taxes, penalties and interest assessed for the fourth quarter of 1975, due in early 1976; that on February 8,1977, Revenue Officer Ely visually inspected Carlson’s “Our Old Corner Inn” bar in Denver where he observed assets including furniture, bar fixtures, liquor, equipment and cash; that Carlson had refused to allow the revenue officer to enter the bar premises; and that Carlson had refused to tender payment. A general review of some of the standard, long-recognized tax procedures may be helpful. A taxpayer normally pays his tax when he files his return. The return is considered to be a self-assessment. Upon receipt by IRS, a formal assessment in the amount reflected in the return is entered on the rolls. Should a taxpayer fail to file a return or tender payment, or if the amount shown on the return is investigated and found deficient, the taxpayer is customarily notified and allowed a series of administrative conferences and appeals with the IRS. Following these appeals, in income, estate, and gift tax cases the taxpayer may seek review in the Tax Court of any final tax declared deficient and owing by IRS. In the course of administrative proceedings, IRS generally does not enter an immediate assessment on the rolls. Such an assessment would allow an immediate forced collection — such as a levy — to be effected. In income, estate and gift tax cases, a “notice of deficiency” must be sent to the taxpayer so that the taxpayer may seek Tax Court review and during such proceedings an assessment may be made and a levy effected only upon a determination that collection is in “jeopardy.” See generally, 9 Merten’s, Law of Federal Income Taxation (Zimet Rev.), §§ 49.100-49.148. Once a regular or jeopardy assessment has been formally entered, 26 U.S.C.A. § 6331 authorizes" }, { "docid": "15475131", "title": "", "text": "the taxpayer’s financial picture and that no tax is owed beyond any already paid or withheld. Plaintiff cannot be considered an auditor of his own account, possessed with a dispensing power, but’ rather must hold himself open to audit like all other taxpayers by timely filing his returns, as the law requires. The thinking of plaintiff in this matter, carried to its logical extreme, would be for IRS to assume that the only people who fail to file returns are those who owe no tax. This, of course, is wishful thinking. It is no small burden for IRS to have to make investigations to ferret out the non-payers. To the extent that taxpayers honestly file, and most do, the need for investigations is minimized and the efficiency of the Service is promoted. If, on the other hand, taxpayers are encouraged to believe they can unilaterally determine whether or not to file when their incomes are within the range which requires filing, the need for investigations increases and the efficiency of the Service is impaired. Plaintiff’s example undercuts the Service’s efforts to encourage voluntary compliance and, if condoned, could impair the credibility of IRS with tax officers and the public generally. We conclude, therefore that the action taken against plaintiff is sustainable as a matter within the discretion of IRS, that there was substantial evidence for the action it took, and that the action was taken in good faith and with careful adherence to applicable statutes and regulations. Wathen v. United States, 527 F.2d 1191, 208 Ct.Cl. 342 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 66, 50 L.Ed.2d 82 (1976); Schlegel v. United States, 416 F.2d 1372, 1377-378, 189 Ct.Cl. 30, 40 (1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1359, 25 L.Ed.2d 650 (1970). The present case is very similar to Dargan v. United States, 208 Ct.Cl. 993 (1975), which also involved the failure of an IRS employee to file his returns timely, among other offenses, and where removal was upheld. Finally, plaintiff complains that the ARB ruling sanctioned a penalty too harsh in relation to the misconduct involved." }, { "docid": "14573105", "title": "", "text": "to interview a taxpayer or filing a notice of tax lien in a collection matter. In fact, it is the custom and practice of all revenue officers to take such actions. No provision of the Internal Revenue Code or regulation was disregarded by Whitmore in his attempt to collect the taxes assessed against plaintiff. 22. The revenue officer was not put on notice by anything in the TDA or computer printouts he received or conversation he had with the plaintiff on April 26,1990 that anything was wrong with the assessments he was assigned to collect. 23. The plaintiff attempted to establish at trial that various IRS employees incorrectly filed out internal processing forms as they related to the plaintiff. There was no evidence that any forms were incorrectly filled out. Janich and Reuter were correctly advised that the Philadelphia Service Center processed all 1042 tax returns. Ex. A-29. Janich and Reuter mistakenly believed that since the Philadelphia Service Center processed 1042 tax returns, the Service Center would therefore also mail the appropriate 30 and 90-day letters before any assessment was made. It turns out they were wrong in making that assumption. In any event, the provisions of the internal revenue manual do not create protection for the rights of taxpayers and their representatives. Rather, they are designed to enhance administrative efficiency and expedite investigations. They cannot serve as a basis for a damage action. United States v. DERR, 968 F.2d 943, 946 (9th Cir.1992). 24. The plaintiff also claimed at trial that employees of the IRS intentionally subverted the procedures of the IRS to cause an assessment to be made against plaintiff without mailing him a 90-day letter. There is no evidence that such a conspiracy ever existed or to that any IRS employee or officer intentionally subverted any procedure of the IRS. No one suggested to Janich or Reuter how to process the case or to which service center is should be sent. That was a decision solely made by Janich based upon a good faith belief at, the time that since all 1042 tax returns must be sent" }, { "docid": "22853754", "title": "", "text": "TEFRA and the general provisions of the Internal Revenue Code are adequate to provide a just remedy for any impropriety of government officials that may occur in partnership audits and tax collection. Plaintiffs have not shown that the remedies Congress created in the comprehensive Internal Revenue Code are inadequate or meaningless. To the contrary, we view a Bivens remedy as not only superfluous here, but also as a potential impediment to the orderly assessment and collection of taxes. Our review of TEFRA and the general provisions of the Internal Revenue Code leads us to conclude that Congress carefully weighed the harms that could be suffered by taxpayers against the need for an efficient system of partnership taxation, and then gave partners meaningful and adequate remedies for any wrongdoing by auditors in the assessment and collection of partnership taxes. D Considering the decisions of our sister circuits, the comprehensiveness of the Internal Revenue Code and its remedial provisions for the benefit of taxpayers, and the specific remedies available to a partner challenging audits pursuant to TEFRA, we hold that the taxpayer plaintiffs here have no right to Bivens relief for any allegedly unconstitutional actions of IRS officials engaged in tax assessment and collection. Stated another way, plaintiffs may not pursue a Bivens action with complaints about the IRS’s audits, assessments, and collection of partnership taxes and the obligations of partners. AFFIRMED. . Because the plaintiffs’ claims were dismissed on a motion to dismiss pursuant to Rule 12(b)(6), this factual section recites the facts as pleaded by plaintiffs, which we accept as true for purposes of assessing the dismissal. Wyler Summit P'ship v. Turner Broad. Sys., 135 F.3d 658, 661 (9th Cir. 1998). . In reviewing the scope of the Internal Revenue Code, the Shreiber court further recognized the important balance that Congress struck in the Code between taxpayer rights and the need for an efficient system of taxation. \"Congress chose to provide certain remedies, and not others, as part of the complex statutory scheme which regulates the relationship between the IRS and taxpayers.” 214 F.3d at 152-53. The Third Circuit concluded" }, { "docid": "22986002", "title": "", "text": "to prove in the case at hand. Courts have had little difficulty in upholding dismissals where the nexus was clearly demonstrated or was obvious from the facts. In Giles v. United States, 553 F.2d 647, 213 Ct.Cl. 602 (1977), for example, the dismissed employee was an IRS agent, whose responsibility it was to ferret out delinquent taxpayers who failed to file timely returns. This same agent failed to file timely returns himself over a three-year period. The substantially adverse effect of such behavior on the “efficiency of the service” is not only clear from the facts themselves, but the IRS Collection Division Chief also testified, at the agent’s hearing, “ . . . that conduct such as plaintiff’s would have a deleterious effect upon the morale of other IRS personnel and upon the respect which other Government agencies and the public had for IRS.” 553 F.2d at 650, 213 Ct.Cl. at 607. By such testimony, the connection between the complained of activities and the “efficiency of the service” had been demonstrated, the nexus proven. An earlier case in this circuit, Wroblaski v. Hampton, supra, presented, as we have noted above, the perfect example of a situation in which, because the adverse effects of the employee misconduct on the efficiency of the service were so clearly substantial, a court could properly find a nexus once the facts of the misconduct were proven. Since the effects of Young’s activities on the efficiency of the service are anything but clear, the case at hand is not such a case. The insurmountable problem we find in the case at bar is the total failure of the Government to introduce a scintilla of evidence relating to the nexus problem. All evidence brought forward at Young’s hearing was adduced by Young; the Government did not deign to call even a single witness or produce any documentary evidence other than the mere fact of Young’s conviction. We find the major cases dealing with federal statutes and regulations discussed above uniformly hold that in order validly to discharge a federal employee, 5 U.S.C. § 7501(a) requires that the" }, { "docid": "10492878", "title": "", "text": "that the government’s need to collect tax revenues must override contrary religious convictions. She nonetheless asserts that section 6702 serves a different interest, the efficient processing of individual tax returns. She urges that the section 6702 penalty does not in any way further tax collection because the IRS can easily determine the true tax owed from the information provided on the return and can then satisfy the tax liability out of the taxpayer’s previously withheld federal income taxes. Drefchinski concludes that this concern for mere administrative convenience cannot outweigh her right to make a declaration of conscience. The plaintiff’s argument falls short of the mark. It is simply not possible for the IRS to audit each of the more than 100 million individual returns filed in a tax year. The income tax collection system must therefore operate on a self-assessment basis, which necessitates adoption of the working assumption that taxpayers are trying to make legally correct representations of their tax liability. A growing practice of filing frivolous tax returns that do not represent the tax legally owed seriously undermines this working assumption and threatens the very structure of the self-assessment tax collection system. See S.Rep. No. 494, 97th Cong.2d Sess. 277. Moreover, a legally frivolous misrepresentation of a taxpayer’s tax liability can have a direct impact on the tax actually collected by the IRS. If the taxpayer’s return is not one of those selected for audit, then the incorrect self-assessment will stand and the Government will not collect taxes that are legally owed by the taxpayer. This particular concern, that the IRS might lose in the “audit lottery,” was before Congress when it enacted section 6702. Id. It is therefore clear that the governmental interests underlying section 6702 are as compelling as those found sufficient in United States v. Lee and other cases. Furthermore, section 6702 employs the least restrictive means of achieving these interests. The penalty is addressed to only those returns that fail to correctly represent a taxpayer’s tax liability due to either a position which is legally frivolous or a desire to impede the administration of the" }, { "docid": "22986001", "title": "", "text": "at hand, where Young’s activities ;in his private home had absolutely no connection whatsoever with his employer (nor was any asserted at the hearing). And, in Wathen v. United States, 527 F.2d 1191, 208 Ct.Cl. 342 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976), the dismissed employee was an IRS agent at the time he pursued his mistress across a golf course, as she attempted to flee from his parked car, shot, and killed her in front of numerous witnesses. His picture and IRS affiliation received front page attention in all local newspapers and headline billing on local television news. The tremendous discredit brought upon his employer stands in stark contradistinction to the lack of clear evidence of adverse publicity to plaintiff Young’s employer as a result of his activities. Far from helping defendant’s cause, these cases demonstrate exactly the nexus — that vital connection between the employee’s complained of activities and some identifiable detriment to the efficiency of the service — which defendant has failed to make any effort to prove in the case at hand. Courts have had little difficulty in upholding dismissals where the nexus was clearly demonstrated or was obvious from the facts. In Giles v. United States, 553 F.2d 647, 213 Ct.Cl. 602 (1977), for example, the dismissed employee was an IRS agent, whose responsibility it was to ferret out delinquent taxpayers who failed to file timely returns. This same agent failed to file timely returns himself over a three-year period. The substantially adverse effect of such behavior on the “efficiency of the service” is not only clear from the facts themselves, but the IRS Collection Division Chief also testified, at the agent’s hearing, “ . . . that conduct such as plaintiff’s would have a deleterious effect upon the morale of other IRS personnel and upon the respect which other Government agencies and the public had for IRS.” 553 F.2d at 650, 213 Ct.Cl. at 607. By such testimony, the connection between the complained of activities and the “efficiency of the service” had been demonstrated, the nexus proven. An" }, { "docid": "23256657", "title": "", "text": "NATHANIEL R. JONES, Circuit Judge. Appellant Jay T. Will appeals from the district court’s order granting enforcement of an Internal Revenue Service (IRS) summons. Appellant contends that the summons was issued in bad faith and for purposes of harassment. He also urges that the district court erred in limiting his attempt to prove this fact. For the reasons stated below, we affirm the district court’s decision. During the spring of 1978, Dennis J. Hanzel, a special agent of the IRS, learned that Jay T. Will (hereinafter taxpayer) was accumulating numerous assets. After examining a number of the taxpayer’s returns for several previous years, and after acquiring additional information, Special Agent Hanzel concluded that the taxpayer had no likely source of income which would permit him to acquire the assets he allegedly owned. Accordingly, in October 1979, a formal investigation into taxpayer’s tax liability for the 1975-78 tax years was commenced with Special Agent Hanzel assigned to conduct this probe. The investigation was a joint one; that is, an investigation conducted by both the Examination and Criminal Investigation Divisions of the IRS with Revenue Agent Marilyn J. Brannam assigned to assist Agent Hanzel. On October 25, 1979, Special Agent Hanzel personally served the taxpayer with an IRS summons. This summons directed the taxpayer, as president of Jay T. Will Karate Studio, Inc., to produce certain books and other records of that corporation. Subsequently, on November 1, 1979, Agent Hanzel met with taxpayer and his counsel. At this meeting, the taxpayer produced a few of the requested records but also indicated that he had not decided whether to comply fully and voluntarily with the summons. Later that same day, Agents Hanzel and Brannam visited the office of Paul Knouff, a Certified Public Accountant (CPA) who had prepared the taxpayer’s returns since 1968. On a subsequent visit, Special Agent Hanzel was permitted to microfilm portions of Knouff’s file on the taxpayer. Upon taxpayer’s failure to comply with the summons, Special Agent Hanzel petitioned the District Court for the Southern District of Ohio to enforce the summons. After examining the pleadings, Judge Robert M." }, { "docid": "15475130", "title": "", "text": "taxpaying public who know of it, that an agent of IRS evaded compliance with so elementary, but fundamental, a requirement of the income tax system? The IRS collection division chief testified that conduct such as plaintiff’s would have a deleterious effect upon the morale of other IRS personnel and upon the respect which other Government agencies and the public had for IRS. We conclude that this is substantial evidence upon which the ARB could reasonably conclude that considerations of the efficiency of the service justified, if not mandated, plaintiff’s discharge. As we said in Birnholz v. United States, 199 Ct.Cl. 532, 537 (1972): The IRS is rightly concerned with its image of honesty and integrity. Members of the public, who must turn square corners in tax matters, demand no less of revenue officials. * * *. Nor is plaintiff excused by the procedure contained in the IRS manual, for that simply permits a revenue officer reviewing a taxpayer’s account to dispense, in his discretion, with the formal disclosure once he is satisfied that he knows the taxpayer’s financial picture and that no tax is owed beyond any already paid or withheld. Plaintiff cannot be considered an auditor of his own account, possessed with a dispensing power, but’ rather must hold himself open to audit like all other taxpayers by timely filing his returns, as the law requires. The thinking of plaintiff in this matter, carried to its logical extreme, would be for IRS to assume that the only people who fail to file returns are those who owe no tax. This, of course, is wishful thinking. It is no small burden for IRS to have to make investigations to ferret out the non-payers. To the extent that taxpayers honestly file, and most do, the need for investigations is minimized and the efficiency of the Service is promoted. If, on the other hand, taxpayers are encouraged to believe they can unilaterally determine whether or not to file when their incomes are within the range which requires filing, the need for investigations increases and the efficiency of the Service is impaired. Plaintiff’s" }, { "docid": "7910071", "title": "", "text": "of 1986, LTS withheld employment taxes totalling $243,-263.50, but paid over only $93,257.55. Accordingly, the Internal Revenue Service (IRS) assessed the unpaid taxes against LTS. In July 1986, the IRS issued notices of levy against the corporation’s accounts receivable which had a face value of $200,-000. The IRS notified LTS’s debtors to remit the amounts owed to LTS directly to the Internal Revenue Service. The IRS also seized and sold a computer belonging to LTS. As remittances on LTS’s accounts receivable were received, the IRS credited the payments to LTS’s tax liability. The IRS collected $73,039.40 from the levies which it applied to the tax deficiency. After these credits were applied and interest and statutory penalties added, approximately $84,000 of the corporation’s withholding tax liability remained unpaid. The IRS then credited approximately $5,700 in income tax refunds due Robert and Evelyn Cash against the tax liability. The Cashes brought this suit for refund. The Government counterclaimed for the remaining taxes due and joined Randall Block in the action. The taxpayers answered the counterclaim contending that they were not responsible persons who willfully failed to pay over the withheld taxes. In addition, the taxpayers asserted that the tax had been discharged as a result of the IRS’s levy on LTS’s accounts receivable and subsequent handling of the asset. The district court granted the Government’s motion in limine to exclude from trial any evidence relating to how the IRS handled the seized accounts receivable. The court concluded that this evidence did not relate to any factual issue for jury decision. It reasoned, based upon the taxpayers’ proffered evidence, that the IRS’s collection procedures did not as a matter of law make out taxpayers’ defense that the debt was discharged. The taxpayers’ offer of proof included the depositions of the IRS case agent and Randall Block. According to the deposition of the IRS agent who handled the levy, one notice of levy was sent to the account debtors. She made no other effort to collect the receivables, although her usual practice was to follow up once with a phone call or letter. The" }, { "docid": "22364238", "title": "", "text": "in a prior tax return. Thus, the independent auditor’s obligation to serve the public interest assures that the integrity of the securities markets will be preserved, without the need for a work-product immunity for accountants’ tax accrual workpapers. We also reject respondents’ position that fundamental fairness precludes IRS access to accountants’ tax accrual workpapers. Respondents urge that the enforcement of an IRS summons for accountants’ tax accrual workpapers permits the Government to probe the thought processes of its taxpayer citizens, thereby giving the IRS an unfair advantage in negotiating and litigating tax controversies. But if the SEC itself, or a private plaintiff in securities litigation, sought to obtain the tax accrual workpapers at issue in this case, they would surely be entitled to do so. In light of the broad congressional command of § 7602, no sound reason exists for conferring lesser authority upon the IRS than upon a private litigant suing with regard to transactions concerning which the public has no interest. Congress has granted to the IRS “broad latitude to adopt enforcement techniques helpful in the performance of [its] tax collection and assessment responsibilities.” United States v. Euge, 444 U. S., at 716, n. 9. Recognizing the intrusiveness of demands for the production of tax accrual workpapers, the IRS has demonstrated administrative sensitivity to the concerns expressed by the accounting profession by tightening its internal requirements for the issuance of such summonses. See Internal Revenue Manual §4024.4 (CCH 1981). Although these IRS guidelines were not applicable during the years at issue in this case, their promulgation further refutes respondents’ fairness argument and reflects an administrative flexibility that reinforces our decision not to reduce irrevocably the §7602 summons power. V Beyond question it is desirable and in the public interest to encourage full disclosures by corporate clients to their independent accountants; if it is necessary to balance competing interests, however, the need of the Government for full disclosure of all information relevant to tax liability must also weigh in that balance. This kind of policy choice is best left to the Legislative Branch. Accordingly, the judgment of the Court" }, { "docid": "4418656", "title": "", "text": "is owed beyond any already paid or withheld. Plaintiff cannot be considered an auditor of his own account, possessed with a dispensing power, but rather must hold himself open to audit like all other taxpayers by timely filing his returns, as the law requires. The thinking of plaintiff in this matter, carried to its logical extreme, would be for IRS to assume that the only people who fail to file returns are those who owe no tax. This, of course, is wishful thinking. It is no small burden for IRS to have to make investigations to ferret out the nonpayers. To the extent that taxpayers honestly file, and most do, the need for investigations is minimized and the efficiency of the Service is promoted. If, on the other hand, taxpayers are encouraged to believe they can unilaterally determine whether or not to file when their incomes are within the range which requires filing, the need for investigations increases and the efficiency of the Service is impaired. Plaintiffs example undercuts the Service’s efforts to encourage voluntary compliance and, if condoned, could impair the credibility of IRS with tax officers and the public generally. We conclude, therefore, that the action taken against plaintiff is sustainable as a matter within the discretion of IRS, that there was substantial evidence for the action it took, and that the action was taken in good faith and with careful adherence to applicable statutes and regulations. Wathen v. United States, 208 Ct. Cl. 342, 527 F.2d 1191 (1975), cert. denied, 429 U.S. 821 (1976); Schlegel v. United States, 189 Ct. Cl. 30, 40, 416 F.2d 1372, 1377-378 (1969), cert. denied, 397 U.S. 1039 (1970). The present case is very similar to Dargan v. United States, 208 Ct. Cl. 993 (1975), which also involved the failure of an IRS employee to file his returns timely, among other offenses, and where removal was upheld. Finally, plaintiff complains that the ARB ruling sanctioned a penalty too harsh in relation to the misconduct involved. The court will normally defer to the administrative judgment on appropriate corrective action unless its severity appears" }, { "docid": "21141070", "title": "", "text": "the possibility that he was merely being charged with having made innocent or negligent errors in his tax returns. It is settled, too, that the general standard of promoting the efficiency of the service is adequate for removal or discipline (Arnett v. Kennedy, supra, 416 U.S. 134, 161 (1974)), and in this instance we think that there can be no doubt that it promotes the efficiency of the civil service to proceed against an IRS tax technician — responsible for overseeing other taxpayers’ returns — who deliberately or recklessly overstates his own deductions. “The IRS is rightly concerned with its image of honesty and integrity. Members of the public, who must turn square con- ners in tax matters, demand no less of revenue officials.” Birnholz v. United States, 199 Ct. Cl. 532, 537 (1972); see also Kandall v. United States, 186 Ct. Cl. 900, 935, cert. denied, 396 U.S. 837 (1969). Promotion of the “efficiency of the service” is not restricted to testing the employee’s work-efficiency or his performance on the job. See Arnett v. Kennedy, supra. There is an accusation that witnesses plaintiff wished to call at the IRS hearing were not produced by management. No good ground exists for questioning the rulings on this point of the examiner who presided at that hearing. Several of these persons had no knowledge of any of the relevant issues; some were no longer in IRS employ; others were demanded in order to talk about penalties imposed by IRS in adverse action cases but there was no showing that any of them had knowledge of cases directly comparable to plaintiff’s. One witness, who had audited Hoover’s return, was made available but was not called either at the IRS or at the Civil Service Commission hearing. It is clear that, at the latter, plaintiff had available any IRS witnesses he had indicated he desired, but his representative failed to call most of them. It is also plain that he had full opportunity to cross-examine the IRS inspector (the only management witness at either hearing) who gave the crucial testimony against him. Other scattershot" }, { "docid": "4418655", "title": "", "text": "of IRS evaded compliance with so elementary, but fundamental, a requirement of the income tax system? The IRS collection division chief testified that conduct such as plaintiffs would have a deleterious effect upon the morale of other IRS personnel and upon the respect which other Government agencies and the public had for IRS. We conclude that this is substantial evidence upon which the ARB could reasonably conclude that considerations of the efficiency of the service justified, if not mandated, plaintiffs discharge. As we said in Birnholz v. United States, 199 Ct. Cl. 532, 537 (1972): The IRS is rightly concerned with its image of honesty and integrity. Members of the public, who must turn square corners in tax matters, demand no less of revenue officials. * * *. Nor is plaintiff excused by the procedure contained in the IRS manual, for that simply permits a revenue officer reviewing a taxpayer’s account to dispense, in his discretion, with the formal disclosure once he is satisfied that he knows the taxpayer’s financial picture and that no tax is owed beyond any already paid or withheld. Plaintiff cannot be considered an auditor of his own account, possessed with a dispensing power, but rather must hold himself open to audit like all other taxpayers by timely filing his returns, as the law requires. The thinking of plaintiff in this matter, carried to its logical extreme, would be for IRS to assume that the only people who fail to file returns are those who owe no tax. This, of course, is wishful thinking. It is no small burden for IRS to have to make investigations to ferret out the nonpayers. To the extent that taxpayers honestly file, and most do, the need for investigations is minimized and the efficiency of the Service is promoted. If, on the other hand, taxpayers are encouraged to believe they can unilaterally determine whether or not to file when their incomes are within the range which requires filing, the need for investigations increases and the efficiency of the Service is impaired. Plaintiffs example undercuts the Service’s efforts to encourage voluntary" } ]

[ { "docid": "7629620", "title": "", "text": "63 S.Ct. at 537-38 this does not conflict with our holding that the February 1901 act restricts the American Bar Road right of way. The Court held that the February 1901 act did not apply to the Indian land over which the right of way ran in that case, but the act clearly does apply to the land that the American Bar Road crosses. The judgment of the district court is reversed insofar as it holds that the defendants did not trespass upon the rights of the United States in the American Bar Road, and the cause is remanded for the entry of appropriate relief. . The district court ruled against defendants regarding their use of a second road known as the Hoffman Cutoff. That ruling is not before us. . The United States subsequently reserved the land as part of the Helena National Forest. . R.S. 2477 states: The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted. The statute was first enacted as Section 8 of the Act of July 26, 1866, ch. 262, 14 Stat. 251, 253, then was codified as Revised Statutes 2477 and subsequently as 43 U.S.C. § 932 (1970 ed.). It was repealed by § 706(a) of the Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, 90 Stat. 2743, 2793. The parties agree that R.S. 2477 operates prospectively to grant rights of way for highways constructed after its enactment in 1866. In Humboldt County v. United States, 684 F.2d 1276, 1282 n. 6 (9th Cir.1982), this court left open the question whether R.S. 2477 has prospective effect, noting that United States v. Dunn, 478 F.2d 443, 445 n. 2 (9th Cir.1973) had expressed doubt on this point. Dunn is questionable authority because if is contrary to the cases cited in Humboldt County, 684 F.2d at 1282 n. 6, and appears to misread Central Pacific Railway Co. v. Alameda County, 284 U.S. 463, 52 S.Ct. 225, 76 L.Ed. 402 (1932). . R.S. 2339 and R.S. 2477 were enacted as §§ 8 and" } ]

[ { "docid": "20112174", "title": "", "text": "violation of § 706(2)(C) of the APA. We reject this claim on the ground urged by the government in its brief on appeal: that regardless whether the trails in question are public highways under R.S. § 2477, they are nonetheless subject to the Forest Service regulation. This court held in United States v. Vogler, 859 F.2d 638 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 787, 102 L.Ed.2d 779 (1989), that the statutory authority conferred on the National Park Service under 16 U.S.C. § 1 to regulate national parks empowers the Park Service to regulate the use of R.S. § 2477 roads that are located within park areas. 859 F.2d at 642. As 16 U.S.C. § 551 confers on the Department of Agriculture similar authority to regulate national forest areas, Vogler indicates that encompassed within that grant is the authority to regulate use of R.S. § 2477 roads where such is necessary to carry out Agriculture’s statutory duty to protect national forests against “depredations.” Finally, plaintiffs challenge the Forest Service ruling as violating certain provisions of the mining laws. We interpret this argument as a claim that the ruling was “in excess of statutory jurisdiction, authority, or limitations,” in violation of § 706(2)(C) of the APA, or else “not in accordance with law,” in violation of § 706(2)(A) of the APA. Plaintiffs cite 30 U.S.C. § 612(b), which provides, in pertinent part Rights under any mining claim ... shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof.... Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface or any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with" }, { "docid": "11399905", "title": "", "text": "(9th Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982); see also H.R.Rep. No. 1521, 96th Cong., 2d Sess. 20 (1980) (implying that § 3210(a) applies outside of Alaska by concluding that provision in Colorado Wilderness Act pertaining to access to nonfederally owned lands was unnecessary due to § 3210(a) of ANILCA). . Section 3210(a) provides: Notwithstanding any other provisions of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfed-erally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure the owner reasonable use and enjoyment thereof: Provided, that such owner comply with rules and regulations applicable to ingress and egress to or from the National Forest System. 16 U.S.C. § 3210(a). .The parties submitted to the district court a copy of the proposed permit the Forest Service presented to Defendant. We have attached a copy of the permit, (\"Exhibit L”), as an appendix to this opinion. . At this point in the record, we express no opinion on the validity of Jenk's claims to access pursuant to patent, statute, or common law. Furthermore, we need not decide now whether Jenks may establish a continuing right to access during the permitting process. If the government denies Jenks access to his inholdings during the permitting process, Jenks’ interim right to access may depend upon whether he can make the showing necessary for a preliminary injunction or other interim relief. At this point in the record, there is no indication that the government would deny Jenks access to his land during the processing of his application. Thus, the issue of Jenks' possible right to access during the pendency of the application process is not now properly before us. . Specifically, Defendant challenges terms of the proposed permit which: (1) require him to pay a fee for access; (2) make use of the easements conditional; (3) allow the Forest Service to terminate the easements; (4) allow the Forest Service to change the terms and conditions of the easements;" }, { "docid": "6938164", "title": "", "text": "at 1259-1260. We further held that the Adamses “must comply with reasonable Forest Service rules and regulations with regard to maintenance or road improvement.” Id. at 1260. On remand, we directed the district court to “determine the rights and responsibilities of both parties to ensure both access and stewardship of public land” and fashion an appropriate injunction. Id. On remand, the district court held that, to the extent that the general public can travel the Clark Canyon Road, the Adams-es could also do so without obtaining special use permits. However, the court ordered that, for all of the Adamses’ uses exceeding those of the general public, such as snow removal and road maintenance, the Adamses must apply for special use permits. The court further held that the Forest Service’s proposed permits were reasonable. The district court also held that the Forest Service was entitled to a right of way to perform reclamation work, either via the Buol right of way or an alternative right of way. Finally, the court ordered a survey prepared by the Adamses and filed with the County Recorder stricken from the county records. This appeal followed. III. The panel reviews issues of fact for clear error, see Diamond v. City of Taft, 215 F.3d 1052, 1055 (9th Cir.2000), and reviews issues of law de novo, see Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997). IV. The Organic Act of 1897 establishes the Forest System. 16 U.S.C. §§ 473-482, 551. The Forest Service manages Forest System lands pursuant to various statutes, including the Alaska National Interest Lands Conservation Act (“ANILCA”), the Federal Land Policy and Management Act (“FLPMA”), the National Forest Roads and Trails Act (“NFRTA”), and the special use permit regulations contained in 36 C.F.R. section 251. In 1980, Congress enacted § 1323(a) of ANILCA. Section 1323(a) mandates that the Secretary of Agriculture “provide such access to non-federally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment” of the private land. 16 U.S.C. § 3210(a). However, § 1323(a)" }, { "docid": "16906503", "title": "", "text": "uses. The district court held that “credible testimony indicates that whatever road existed in 1881, the Clark Canyon Road is no longer in the same location as that historical road. The modern road was built in the 1960’s.” The district court found that the Clark Canyon Road as it exists today came into existence after 1906. Consequently, the district court denied the Adamses an easement over the road pursuant to R.S. § 2477. Under the clearly erroneous standard, we affirm this factual determination by the district court. 2. Alaska National Interest Lands Conservation Act The Adamses contend that the Forest Service must grant them an easement under the Alaska National Interest Lands Conservation Act. The relevant language, § 3210(a), provides: Notwithstanding any other provision of law and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure the owner the reasonable use and enjoyment thereof: Provided, That such owner comply with rules and regulations applicable to ingress and egress to or from the National Forest System. Despite its name, the provisions of the Alaska National Interest Lands Conservation Act apply outside of Alaska. Montana Wilderness Ass’n v. United States, 655 F.2d 951, 957 (9th Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Congress intended that “such owners had the right of access to their lands subject to reasonable regulation by ... the Secretary of Agriculture in the case of national forest ... under the Federal Land Policy and Management Act of 1976.” 1980 U.S.Code & Admin.News 5070 at 5254. While mandating reasonable access, the statute directs the owners of the private land to “comply with the rules and regulations applicable to ingress and egress to and from the National Forest System.” 16 U.S.C. § 3210(a). The Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 et seq., provides the Secretary with the authority “to grant, issue, or renew rights of way over [Forest Service" }, { "docid": "16906511", "title": "", "text": "Vogler, 859 F.2d at 642, we held use of a presumed R.S. 2477 easement through a National Park subject to reasonable regulations. We have also held that the provisions of 43 U.S.C. § 661 should be read together with the provisions of R.S. 2477. Gates of the Mountains Lakeshore Homes, 732 F.2d at 1413 n. 4. Under 16 U.S.C. § 481, the use of water within National Forests is subject to regulation. See 36 C.F.R. § 251.53(i )(1). The Forest Service still has the authority to reasonably regulate the Adamses’ easement. V The Adamses have a nonexclusive easement that guarantees access to their property under the Alaska National Interest Lands Conservation Act. We REVERSE the decision of the district court denying this easement and VACATE the injunction issued by the district court. The Forest Service must provide reasonable access to the Adamses’ property at all times. However, the Adams-es must comply with reasonable Forest Service rules and regulations with regard to maintenance or road improvement. We REMAND the case to the district court to determine the rights and responsibilities of both parties to ensure both access and stewardship of public land. The district court should also determine the reasonableness of the Forest Service regulations concerning road maintenance and improvement. We AFFIRM the district court determination that the Adamses’ quiet title action was barred by the statute of limitations. We AFFIRM the district court’s holding that the Adamses have a right-of-way to transport water over Forest Service land. Again we remind the Adamses that they must comply with reasonable Forest Service regulations. Because we find the Adamses have an easement over the Forest Service road, damages, if any, will have to be recalculated. We VACATE the damages award and REMAND for reconsideration of the amount of damages. . Even if the Adamses had an easement under R.S. 2477, they would still be subject to reasonable Forest Service regulations. United States v. Vogler, 859 F.2d 638, 642 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 787, 102 L.Ed.2d 779 (1989). . The Secretary has promulgated regulations governing access under the Alaska" }, { "docid": "16906512", "title": "", "text": "the rights and responsibilities of both parties to ensure both access and stewardship of public land. The district court should also determine the reasonableness of the Forest Service regulations concerning road maintenance and improvement. We AFFIRM the district court determination that the Adamses’ quiet title action was barred by the statute of limitations. We AFFIRM the district court’s holding that the Adamses have a right-of-way to transport water over Forest Service land. Again we remind the Adamses that they must comply with reasonable Forest Service regulations. Because we find the Adamses have an easement over the Forest Service road, damages, if any, will have to be recalculated. We VACATE the damages award and REMAND for reconsideration of the amount of damages. . Even if the Adamses had an easement under R.S. 2477, they would still be subject to reasonable Forest Service regulations. United States v. Vogler, 859 F.2d 638, 642 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 787, 102 L.Ed.2d 779 (1989). . The Secretary has promulgated regulations governing access under the Alaska National Interest Lands Conservation Act. See 56 Fed.Reg. 27410 (June 14, 1991), 36 C.F.R. Part 251, Sub-part D. . For regulations promulgated under the Federal Land Policy and Management Act, see 45 Fed. Reg. 38327 (June 6, 1980), 36 C.F.R. Part 251 Subpart B." }, { "docid": "20112173", "title": "", "text": "challenged agency ruling holding that motorized access is not required under 36 C.F.R. § 228.15 is not arbitrary and capricious in violation of § 706(2)(A) of the APA. Plaintiffs also argued in the district court that the Forest Service acted improperly in ruling that the trails in question do not qualify as public highways under R.S. § 2477. Plaintiffs assert that authority to decide whether roads qualify as public highways under R.S. § 2477 is vested in the Department of the Interior. The district court rejected that contention, ruling the Forest Service may properly rule on such issues in the course of carrying out its duty to review and approve plans of operations. ER at 170. Plaintiffs raise this argument again on appeal, charging that the Forest Service improperly ruled on this issue which might otherwise afford them a legal basis for circumventing the Service’s ban on motorized access. We interpret this argument as a claim that the Forest Service’s ruling regarding the Thunderbolt claim was “in excess of statutory jurisdiction, authority, or limitations,” in violation of § 706(2)(C) of the APA. We reject this claim on the ground urged by the government in its brief on appeal: that regardless whether the trails in question are public highways under R.S. § 2477, they are nonetheless subject to the Forest Service regulation. This court held in United States v. Vogler, 859 F.2d 638 (9th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 787, 102 L.Ed.2d 779 (1989), that the statutory authority conferred on the National Park Service under 16 U.S.C. § 1 to regulate national parks empowers the Park Service to regulate the use of R.S. § 2477 roads that are located within park areas. 859 F.2d at 642. As 16 U.S.C. § 551 confers on the Department of Agriculture similar authority to regulate national forest areas, Vogler indicates that encompassed within that grant is the authority to regulate use of R.S. § 2477 roads where such is necessary to carry out Agriculture’s statutory duty to protect national forests against “depredations.” Finally, plaintiffs challenge the Forest Service ruling as violating certain" }, { "docid": "11399888", "title": "", "text": "of Agriculture and Interior with authority “to grant, issue, or renew rights of way over [Forest Service and public lands] for ... roads, trails [and] highways.” 43 U.S.C. § 1761(a). With the passage of FLPMA, Congress believed inholders “had the right of access to their [inholdings] subject to reasonable regulation ... under [ ] FLPMA.” S.Rep. No. 413, 96th Cong., 2d Sess. 1, 310 (1980), reprinted in 1980 U.S.C.C.A.N. 5070, 5254 (reviewing access rights of inholders under FLPMA and explaining need for Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. §§ 3101-3233 (“ANIL-CA”)). However, access rights to inholdings, especially those inholdings located in wilderness areas, became more uncertain when the Secretary of Interior concluded that FLPMA “authorized denial of access across public lands subject to wilderness review.” Id. In order to resolve “any lingering legal questions” concerning inholders’ right of access to their property, Congress passed § 3210(a) of ANILCA in 1980. See Pub.L. No. 96-487, 94 Stat. 2374 (codified at 16 U.S.C. §§ 3101-3233 (1980)). Section 3210(a) of ANILCA guarantees to inholders a threshold “right of access to their lands subject to reasonable regulation [under FLPMA] by ... the Secretary of Agriculture in the case of national forest [lands].” Adams v. United States, 3 F.3d 1254, 1258-59 (9th Cir.1993) (citation omitted). While ANILCA mandates that the Forest Service provide reasonable access to all inholders, it directs inholders to “comply with rules and regulations applicable to ingress and egress to and from the National Forest System.” 16 U.S.C. § 3210(a). II. The current controversy results from the Forest Service’s attempt to regulate Defendant’s access to his inholdings pursuant to ANILCA and FLPMA. Defendant is the owner of three ranches located within the Apache National Forest in Catron County, New Mexico. The Centerfire Bog Ranch, the Double J. Ranch and the Patruff Ranch were originally patented to Defendant’s predecessors in interest pursuant to the Homestead Act. Each of Defendant’s ranches is completely surrounded by forest service land; consequently, Defendant must cross forest service land in order to access his property. Prior to the present controversy, Defendant had use of" }, { "docid": "19900857", "title": "", "text": "1769(a). The Act mandates that the government manage public lands to promote environmental protection, recreation, and human occupancy and use. 43 U.S.C. § 1701(a)(8). To that end, FLPMA directs the Forest Service, when granting rights-of-way, to protect scenic and esthetic values, fish and wildlife habitat, the environment, and the public interest, and to achieve these goals by promulgating regulations. 43 U.S.C. §§ 1764(c),(e); 1765(a)(ii),(b)(vi). FLPMA also requires that the United States receive fair market value for use of the public lands. 43 U.S.C. § 1701(a)(9). . Fitzgerald v. United States, 932 F.Supp. 1195 (D.Ariz.1996), vacated as moot No. CIV-94-0518-PCT-PRG (D.Ariz. July 19, 1999). . 7 C.F.R. § 1.130-1.151. These rules provide for the filing and adjudication of an administrative complaint when, inter alia, an administrative order is violated. . ANILCA, passed in 1980, directs the Secretary of Agriculture to provide access to private property within the boundaries of the National Forest System \"as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof” and provided that the \"owner comply with rules and regulations applicable to ingress and egress” over the federal land. 16 U.S.C. § 3210. In this respect, ANILCA is not limited to national forest land located in the state of Alaska, but rather applies nationwide. Mont. Wilderness Ass’n v. U.S. Forest Serv., 655 F.2d 951, 957 (9th Cir.1981). . On February 26, 2003, Raymond and Nancy Fitzgerald transferred the O’Haco Cabins Ranch property to the Fitzgerald Living Trust. On December 10, 2004, the Clerk substituted the Fitzgerald Living Trust for Raymond and Nancy Fitzgerald as parties to this appeal. Raymond and Nancy Fitzgerald are trustees, and continue to use FDR 56B to access the property. For the sake of continuity, we continue to refer to the appellants as \"the Fitz-geralds.” . 36 C.F.R. § 251.114(f) provides: ''[T]he authorizing officer, prior to issuing any access authorization, must also ensure that: (1) The landowner has demonstrated a lack of any existing rights or routes of access available by deed or under State or common law.” . The 1897 Organic Act authorized the Secretary of Agriculture" }, { "docid": "16906501", "title": "", "text": "or city. The Adamses need a recognized easement, if they deserve one, to ensure that their land is accessible at all times over the Forest Service road. It is important to note at the start the difference in this ease before and after the district court issued its injunction. When the Adamses first brought this action, they wanted a recognized easement in order to maintain the road without Forest Service approval or notification. The Forest Service had not denied the Adamses, access to their land; however, the injunction issued by the district court did. It states that they are “hereby permanently enjoined from further use or occupancy of National Forest lands without first obtaining prior approval from the appropriate federal agency.” This injunction is far too broad. Even before addressing the easement question, we note that Clark Canyon Road is open to the public, including the Adamses, without a permit. 36 C.F.R. 212.-8(b), 251.50(d). The district court should not have enjoined their “use” of the road. 1. Revised Statute 2Jp77 Revised Statute 2477 (“R.S. 2477”) once provided that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” 43 U.S.C. § 932 (1970), repealed by Federal Land Policy Management Act, Pub.L. No. 94-579, § 706(a), 90 Stat. 2743, 2793 (1976). The act repealing R.S. 2477 preserved any rights-of-way that had existed prior to the date of enactment. 43 U.S.C. § 1769(a). To establish an easement, the Adamses must show that the road in question was built before the surrounding land lost its public character in 1906. Humbolt County v. United States, 684 F.2d 1276, 1281 (9th Cir.1982). “Any doubt as to the scope of the grant under R.S. 2477 must be resolved in favor of the government.” United States v. Gates of the Mountains Lakeshore Homes, 732 F.2d 1411, 1413 (9th Cir.1984). The only colorable claim under R.S. 2477 is an easement over the Clark Canyon Road. The other roads mentioned in this appeal were all constructed after 1906, after the federal lands surrounding the property were reserved for public" }, { "docid": "23217961", "title": "", "text": "It is of no moment that the County formally has been aligned as a defendant rather than a third-party defendant. Substantively, the relief sought and the defenses raised are identical; no party has been prejudiced; and neither the County nor BLM has raised an objection to the misalignment. We thus conclude that, if not joined originally, the County would have been brought in under Rule 19. Ill A. Background on Right-of-Way Issue From 1866 until its repeal by FLPMA in 1976, R.S. 2477 granted a “right of way for the construction of highways over public lands, not reserved for public uses....” According to regulations issued by the Department of the Interior and, after 1946, the Bureau of Land Management, a right-of-way could be obtained without application to, or approval by, the federal government. See 43 C.F.R. § 2822.1-1 (1979). See also 43 C.F.R. § 244.55 (1939). Rather, “[t]he grant referred to in [R.S. 2477] [became] effective upon the construction or establishing of highways, in accordance with the State laws.” 43 C.F.R. § 244.55 (1939). FLPMA, passed in 1976, vests the Secretary of the Interior with broad authority to manage the federal government’s vast land holdings. The statute departs from the federal government’s earlier policy of giving away public lands, in favor of a philosophy of retention and management to maximize the multitudinous interests in the lands. To that end, FLPMA repeals R.S. 2477 and its open-ended grant of rights-of-way over public lands while explicitly protecting R.S. 2477 rights-of-way in existence on the date of FLPMA’s passage. See FLPMA §§ 509(a), 701(a), and 701(h), codified respectively at 43 U.S.C. §§ 1769(a) and 1701, Savings Provisions (a) and (h). Any new rights-of-way must be obtained under the stricter provisions of FLPMA Subchapter V, codified at 43 U.S.C. §§ 1761-1771. FLPMA also requires the Secretary of the Interior to identify and protect wilderness study areas (WSAs) pending executive decisions on whether to accept WSAs into the Federal Wilderness Preservation System. FLPMA § 603, 43 U.S.C. § 1782. A major part of this case involves the interplay between FLPMA and preexisting R.S. 2477 grants," }, { "docid": "16906504", "title": "", "text": "such owner comply with rules and regulations applicable to ingress and egress to or from the National Forest System. Despite its name, the provisions of the Alaska National Interest Lands Conservation Act apply outside of Alaska. Montana Wilderness Ass’n v. United States, 655 F.2d 951, 957 (9th Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Congress intended that “such owners had the right of access to their lands subject to reasonable regulation by ... the Secretary of Agriculture in the case of national forest ... under the Federal Land Policy and Management Act of 1976.” 1980 U.S.Code & Admin.News 5070 at 5254. While mandating reasonable access, the statute directs the owners of the private land to “comply with the rules and regulations applicable to ingress and egress to and from the National Forest System.” 16 U.S.C. § 3210(a). The Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 et seq., provides the Secretary with the authority “to grant, issue, or renew rights of way over [Forest Service lands] for ... roads, trails [and] highways.” 43 U.S.C. § 1761(a). It also provides: Rights-of-way shall be granted, issued, or renewed pursuant to this subchapter under such regulations or stipulations, consistent with the provisions of the subchapter or any other applicable law, and shall also be subject to such terms and conditions as the Secretary concerned may prescribe regarding extent, duration, survey, location, construction, maintenance, transfer or assignment, and termination. 43 U.S.C. § 1764(c). The Alaska National Interest Lands Conservation Act provides the Adamses’ easement. It commands the Secretary of Agriculture to provide access to secure the owner’s reasonable use and enjoyment. The Adamses’ reasonable use and enjoyment clearly rests on their ability to freely access their property. We find the Adamses have an easement over the Forest Service road; accordingly, we reverse the portion of the district court decision that denied the Adamses an easement and vacate the district court injunction. B. Maintenance Our finding of an easement does not end our inquiry. This conclusion leads inevitably to the question of the extent of" }, { "docid": "19900855", "title": "", "text": "the UNITED STATES unto the said [grantee] the tract of Land above described; TO HAVE AND TO HOLD the said tract of Land, with the appurtenances thereof, unto the said [grantee] and to the heirs and assigns of the said [grantee] forever[.] with an easement under NFRTA. NFRTA was passed out of concern for the construction and maintenance of roads and trails within and near the national forests to meet the increasing demands for timber, recreation, and other uses of the national forests. 16 U.S.C. § 532. It provides for the granting of easements to applicants who are participating in the construction and maintenance of the national forest road system. H.R. Rep. 88-1920 (1964). These easements are provided without cost. The Fitzgeralds are not entitled to a NFRTA easement because they are not using FDR 56B to assist the Forest Service in managing the Sitgreaves National Forest. Given the intent of the statute, there is no support for the Fitzgeralds’ argument that the Forest Service erred by failing to exercise its discretionary power to provide a NFRTA easement or by failing to offer any reason for not doing so. VII FLPMA vests the Secretary of Agriculture with the authority to regulate access over the Sitgreaves National Forest. 43 U.S.C. § 1761(a). The FLPMA easement offered to the Fitzgeralds, who hold no common law easements over the forest service land, is a reasonable exercise of that authority. Accordingly, the district court’s judgment is AFFIRMED. . In 1891, Congress passed the Forest Reserve Act, vesting the President with the authority to reserve forest land from the public domain. 16 U.S.C. § 471 (repealed 1976). Pursuant to this act, in 1898 President McKinley reserved the Black Mesa Forest Reserve, which later became known at the Sitgreaves National Forest. In 1974, the Sit-greaves and Apache Forests were administratively combined and are sometimes referred to jointly as the Apache-Sitgreaves National Forests. . Passed in 1976, FLPMA both recognizes preexisting rights-of-way, and provides the Secretary of Agriculture with the authority to grant rights-of-way for roads over lands administered by the Forest Service. 43 U.S.C. §§ 1761," }, { "docid": "16906502", "title": "", "text": "once provided that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” 43 U.S.C. § 932 (1970), repealed by Federal Land Policy Management Act, Pub.L. No. 94-579, § 706(a), 90 Stat. 2743, 2793 (1976). The act repealing R.S. 2477 preserved any rights-of-way that had existed prior to the date of enactment. 43 U.S.C. § 1769(a). To establish an easement, the Adamses must show that the road in question was built before the surrounding land lost its public character in 1906. Humbolt County v. United States, 684 F.2d 1276, 1281 (9th Cir.1982). “Any doubt as to the scope of the grant under R.S. 2477 must be resolved in favor of the government.” United States v. Gates of the Mountains Lakeshore Homes, 732 F.2d 1411, 1413 (9th Cir.1984). The only colorable claim under R.S. 2477 is an easement over the Clark Canyon Road. The other roads mentioned in this appeal were all constructed after 1906, after the federal lands surrounding the property were reserved for public uses. The district court held that “credible testimony indicates that whatever road existed in 1881, the Clark Canyon Road is no longer in the same location as that historical road. The modern road was built in the 1960’s.” The district court found that the Clark Canyon Road as it exists today came into existence after 1906. Consequently, the district court denied the Adamses an easement over the road pursuant to R.S. § 2477. Under the clearly erroneous standard, we affirm this factual determination by the district court. 2. Alaska National Interest Lands Conservation Act The Adamses contend that the Forest Service must grant them an easement under the Alaska National Interest Lands Conservation Act. The relevant language, § 3210(a), provides: Notwithstanding any other provision of law and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure the owner the reasonable use and enjoyment thereof: Provided, That" }, { "docid": "11399904", "title": "", "text": "We REVERSE the district court’s finding regarding the reasonableness of the terms of the permit. We also REVERSE the district court’s grant of summary judgment in favor of the Forest Service as to Defendant’s patent and common law claims and REMAND to the district court for further proceedings consistent with this opinion. . Inholdings constitute property completely surrounded by property owned by the United States. See Rights-of-Way Across Nat'l Forests, 43 Op. Att’y Gen. No. 26, n. 3 (June 23, 1980). . Subsequent Congressional enactments increased the amount of acreage which could constitute a homestead. See, e.g., Desert Lands Act, ch. 107, 19 Stat. 377 (1877) (codified at 43 U.S.C. §§ 321-339) (allowing homesteads larger than 160 acres in dry western areas); Enlarged Homestead Act, ch. 160, 35 Stat. 639 (1909) (codified at 43 U.S.C. §§ 218-221) (repealed 1976) (allowing homesteads of 320 acres for diy farming). . Section 3210(a) of ANILCA applies to all National Forest System lands, not just those in Alaska. See Montana Wilderness Ass’n v. United States, 655 F.2d 951, 957 (9th Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982); see also H.R.Rep. No. 1521, 96th Cong., 2d Sess. 20 (1980) (implying that § 3210(a) applies outside of Alaska by concluding that provision in Colorado Wilderness Act pertaining to access to nonfederally owned lands was unnecessary due to § 3210(a) of ANILCA). . Section 3210(a) provides: Notwithstanding any other provisions of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfed-erally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure the owner reasonable use and enjoyment thereof: Provided, that such owner comply with rules and regulations applicable to ingress and egress to or from the National Forest System. 16 U.S.C. § 3210(a). .The parties submitted to the district court a copy of the proposed permit the Forest Service presented to Defendant. We have attached a copy of the permit, (\"Exhibit L”), as an appendix to this opinion. . At this" }, { "docid": "11399887", "title": "", "text": "sought to protect the access rights of homesteaders and others owning property within the newly created forest reserves by enacting the Forest Service Organic Administration Act, ch. 2, 30 Stat. 34 (1897) (codified at 16 U.S.C. §§ 473-482, 551). Section 478 of the Organic Act ensured access over national forest land to “actual settlers” and “protectfed] whatever rights and licenses with regard to the public domain existed prior to the reservation.” Montana Wilderness, 496 F.Supp. at 888 (citation omitted) (construing 16 U.S.C. § 478). By 1976, Congress had enacted a tangled array of laws granting rights-of-way across federal lands. See, e.g., 43 U.S.C. § 932 (repealed 1976) (granting rights-of-way for construction of highways over public lands). In an effort to untangle these laws and establish a statutory scheme for the management of forest lands, Congress passed the Federal Land Policy and Management Act (“FLPMA”). See Pub.L. No. 94-579, 90 Stat. 2744 (codified at 43 U.S.C. § 1701-1784 (1976)). Title V of FLPMA repealed over thirty statutes granting rights-of-way across federal lands and vested the Secretaries of Agriculture and Interior with authority “to grant, issue, or renew rights of way over [Forest Service and public lands] for ... roads, trails [and] highways.” 43 U.S.C. § 1761(a). With the passage of FLPMA, Congress believed inholders “had the right of access to their [inholdings] subject to reasonable regulation ... under [ ] FLPMA.” S.Rep. No. 413, 96th Cong., 2d Sess. 1, 310 (1980), reprinted in 1980 U.S.C.C.A.N. 5070, 5254 (reviewing access rights of inholders under FLPMA and explaining need for Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. §§ 3101-3233 (“ANIL-CA”)). However, access rights to inholdings, especially those inholdings located in wilderness areas, became more uncertain when the Secretary of Interior concluded that FLPMA “authorized denial of access across public lands subject to wilderness review.” Id. In order to resolve “any lingering legal questions” concerning inholders’ right of access to their property, Congress passed § 3210(a) of ANILCA in 1980. See Pub.L. No. 96-487, 94 Stat. 2374 (codified at 16 U.S.C. §§ 3101-3233 (1980)). Section 3210(a) of ANILCA guarantees to inholders" }, { "docid": "16906510", "title": "", "text": "of quiet title. IV The Adamses assert that they possess a vested water right under Nevada law and that that vested water right allows them the right to transport the water across Forest Service land. The district court agreed with the Adamses; the United States appeals. To secure a water right-of-way under 43 U.S.C. § 661, the Adamses must have shown, by a preponderance of the evidence, that their water rights vested according to local custom or law. The district court found that the evidence offered by the Adamses, though scant, was sufficient to find a right-of-way. Again, we affirm the district court’s holding that the Adamses possess a vested water right. The vested water right and the accompanying right-of-way are not as broad as the Adamses may believe. In Grindstone Butte Project v. Kleppe, 638 F.2d 100, 103 (9th Cir.), cert. denied, 454 U.S. 965, 102 S.Ct. 505, 70 L.Ed.2d 380 (1981), we held that irrigation rights issued under 43 U.S.C. §§ 946-49 were qualified by a later statute that authorized certain regulations. In Vogler, 859 F.2d at 642, we held use of a presumed R.S. 2477 easement through a National Park subject to reasonable regulations. We have also held that the provisions of 43 U.S.C. § 661 should be read together with the provisions of R.S. 2477. Gates of the Mountains Lakeshore Homes, 732 F.2d at 1413 n. 4. Under 16 U.S.C. § 481, the use of water within National Forests is subject to regulation. See 36 C.F.R. § 251.53(i )(1). The Forest Service still has the authority to reasonably regulate the Adamses’ easement. V The Adamses have a nonexclusive easement that guarantees access to their property under the Alaska National Interest Lands Conservation Act. We REVERSE the decision of the district court denying this easement and VACATE the injunction issued by the district court. The Forest Service must provide reasonable access to the Adamses’ property at all times. However, the Adams-es must comply with reasonable Forest Service rules and regulations with regard to maintenance or road improvement. We REMAND the case to the district court to determine" }, { "docid": "19900856", "title": "", "text": "a NFRTA easement or by failing to offer any reason for not doing so. VII FLPMA vests the Secretary of Agriculture with the authority to regulate access over the Sitgreaves National Forest. 43 U.S.C. § 1761(a). The FLPMA easement offered to the Fitzgeralds, who hold no common law easements over the forest service land, is a reasonable exercise of that authority. Accordingly, the district court’s judgment is AFFIRMED. . In 1891, Congress passed the Forest Reserve Act, vesting the President with the authority to reserve forest land from the public domain. 16 U.S.C. § 471 (repealed 1976). Pursuant to this act, in 1898 President McKinley reserved the Black Mesa Forest Reserve, which later became known at the Sitgreaves National Forest. In 1974, the Sit-greaves and Apache Forests were administratively combined and are sometimes referred to jointly as the Apache-Sitgreaves National Forests. . Passed in 1976, FLPMA both recognizes preexisting rights-of-way, and provides the Secretary of Agriculture with the authority to grant rights-of-way for roads over lands administered by the Forest Service. 43 U.S.C. §§ 1761, 1769(a). The Act mandates that the government manage public lands to promote environmental protection, recreation, and human occupancy and use. 43 U.S.C. § 1701(a)(8). To that end, FLPMA directs the Forest Service, when granting rights-of-way, to protect scenic and esthetic values, fish and wildlife habitat, the environment, and the public interest, and to achieve these goals by promulgating regulations. 43 U.S.C. §§ 1764(c),(e); 1765(a)(ii),(b)(vi). FLPMA also requires that the United States receive fair market value for use of the public lands. 43 U.S.C. § 1701(a)(9). . Fitzgerald v. United States, 932 F.Supp. 1195 (D.Ariz.1996), vacated as moot No. CIV-94-0518-PCT-PRG (D.Ariz. July 19, 1999). . 7 C.F.R. § 1.130-1.151. These rules provide for the filing and adjudication of an administrative complaint when, inter alia, an administrative order is violated. . ANILCA, passed in 1980, directs the Secretary of Agriculture to provide access to private property within the boundaries of the National Forest System \"as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof” and provided that the \"owner comply with" }, { "docid": "732340", "title": "", "text": "ANILCA. Third, if the Hales must wait for the NPS’s ultimate permitting decision, the Department of the Interior’s decision to apply NEPA will likely become effectively unreviewable. Cf. Meredith v. Fed. Mine Safety & Health Review Comm’n, 177 F.3d 1042, 1050-52 (D.C.Cir.1999) (applying collateral order doctrine to review an administrative order that rejected defendants’ assertion of statutory immunity). We therefore conclude that we have jurisdiction over the Hales’ appeal under the collateral order doctrine. II. Discussion The Hales’ ability to use the MGB road within the Park is subject to reasonable regulation. In United States v. Vogler, 859 F.2d 638 (9th Cir.1988), we decisively rejected the argument that the NPS lacks the power to regulate travel to an inholding across federally protected land. In Vogler, an inholder in the Yukon-Charley Rivers National Preserve in Alaska sought to drive heavy equipment over a claimed R.S. 2477 trail without a permit. Id. at 640-42. Assuming, without deciding, that the trail qualified as a right-of-way, we held that the government could nevertheless regulate the inholder’s use of the trail: Congress has made it clear that the Secretary has broad power to regulate and manage national parks. The Secretary’s power to regulate within a national park to “conserve the scenery and the nature and historic objects and wildlife therein .... ” applies with equal force to regulating an established right of way within the park ... [T]he regulations here are necessary to conserve the natural beauty of the Preserve; therefore, they lie within the government’s power to regulate national parks. Id. at 642 (quoting 16 U.S.C. § 1). Consequently, even if the Hales have a valid right-of-way over the MGB road — which we do not decide — the existence of that right-of-way would not shield them from reasonable regulation by the NPS. ANILCA provides access rights for in-holders, but it also contemplates reasonable government regulation. Under AN-ILCA, inholders are entitled to “such rights as may be necessary to assure adequate and feasible access” to their land “notwithstanding any ... other law,” but these access rights are “subject to reasonable regulations issued by the" }, { "docid": "6938165", "title": "", "text": "Adamses and filed with the County Recorder stricken from the county records. This appeal followed. III. The panel reviews issues of fact for clear error, see Diamond v. City of Taft, 215 F.3d 1052, 1055 (9th Cir.2000), and reviews issues of law de novo, see Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997). IV. The Organic Act of 1897 establishes the Forest System. 16 U.S.C. §§ 473-482, 551. The Forest Service manages Forest System lands pursuant to various statutes, including the Alaska National Interest Lands Conservation Act (“ANILCA”), the Federal Land Policy and Management Act (“FLPMA”), the National Forest Roads and Trails Act (“NFRTA”), and the special use permit regulations contained in 36 C.F.R. section 251. In 1980, Congress enacted § 1323(a) of ANILCA. Section 1323(a) mandates that the Secretary of Agriculture “provide such access to non-federally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment” of the private land. 16 U.S.C. § 3210(a). However, § 1323(a) explicitly conditions access on the inholder’s compliance with the “rules and regulations applicable to ingress and egress to or from the National Forest System.” Id. The “rules and regulations” referred to by § 1323(a) are those contained in 36 C.F.R. section 251 subpart B. These regulations provide that, “as appropriate,” in-holders will be entitled to access “adequate to secure them the reasonable use and enjoyment of their land.” 36 C.F.R. § 251.110(c). Adequate access is defined as “a route and method of access to non-Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land.” 36 C.F.R. § 251.111. Before issuing any access authorization, an officer must ensure that “[t]he route is so located and constructed as to minimize adverse impacts on soils, fish and wildlife, scenic, cultural, threatened and endangered species, and other values of the Federal land.” 36 C.F.R. § 251.114(f)(2). Inholders who require surface-disturbing access or use greater than that afforded the general public must “apply for and receive a special-use or road-use authorization.”" } ]

[ { "docid": "20006615", "title": "", "text": "matter, many of our sister circuits have applied the doctrine to a pending immigration appeal. See, e.g., Gao, 481 F.3d at 178; Garcia-Flores v. Gonzales, 477 F.3d 439, 442 (6th Cir.2007); Sapoundjiev, 376 F.3d at 728; Antonio-Martinez, 317 F.3d at 1092-93; Bar-Levy, 990 F.2d at 35; Arana v. INS, 673 F.2d 75, 77 (3d Cir.1982) (per curiam). Today, we follow their lead and sound logic in holding that the fugitive disentitlement doctrine applies in immigration appeals. Several reasons support our decision to dismiss the pending immigration appeal of a fugitive. See Ortega-Rodriguez, 507 U.S. at 240-42, 113 S.Ct. 1199. First and foremost is our concern for the enforceability of our decisions. Without the fugitive present to accept the decision of this court, there is no guarantee that our judgment could be executed. In other words, enforcement is likely to occur only if we should decide in favor of the fugitive immigrant. See Antonio-Martinez, 317 F.3d at 1093 (“heads you win, tails you’ll never find me.”). “The reasoning in support of such dismissals is that, if the case were affirmed, the appellant in all likelihood would not surrender.... We are accordingly reluctant to decide what may prove to be a moot case.” Lopez, 552 F.2d at 683. The possible inability to enforce our decision leads us to the second reason for applying the fugitive disentitlement doctrine: “the need for a sanction to redress the fugitive’s affront to the dignity of the judicial process.” Gao, 481 F.3d at 176. Simply put, “a fugitive from justice should not be able to use the judicial system while at the same time avoiding it.” Timbers Preserve, 999 F.2d at 453. Moreover, “dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice.’ ” Hanzlicek, 187 F.3d at 1220 (quoting Ortega-Rodriguez, 507 U.S. at 242, 113 S.Ct. 1199). Application of the facts to this case illustrates the many reasons behind the doctrine. Should we decide to affirm the BIA’s decision, our decision would be virtually superfluous. Because Mr. Martin is nowhere" } ]

[ { "docid": "17430603", "title": "", "text": "this court has denied appellate relief for “aliens who have fled custody and cannot be located” at the time their appeals are pending. Id.; see also Zapon v. U.S. Dep’t of Justice, 53 F.3d 283, 284-85 (9th Cir.1995). Two factors guide our discretion to dismiss an appeal based on the fugitive disentitlement doctrine: “(1) the pragmatic concern with ensuring that the court’s judgment will be enforceable against the appellant; and (2) the equitable notion that a person who flouts the authority of the court waives his entitlement to have his appeal considered.” Sun, 555 F.3d at 804. Ms. Mamigonian’s failure to surrender for her deportation flight on December 27, 2011, does not alone disentitle her from making this appeal. See Arrozal v. Immigration & Naturalization Serv., 159 F.3d 429, 432 (9th Cir.1998) (declining to dismiss appeal for failure to report for deportation because petitioner was no longer a fugitive); cf. Antonio-Martinez v. Immigration & Naturalization Serv., 317 F.3d 1089, 1091-93 (9th Cir.2003) (denying petition for review where petitioner had been “out of touch” with counsel and INS “for well over two years”). Although the government did not know Ms. Mamigoni-an’s whereabouts when the parties originally briefed this appeal, it is currently aware of her whereabouts and is now monitoring her electronically. We have previously declined to dismiss an appeal pursuant to the fugitive disen-titlement doctrine where, although the petitioner had failed to report for deportation, her whereabouts were known to her counsel, DHS, and the court during the pendency of her case. See Sun, 555 F.3d at 805. Since Ms. Mamigonian’s whereabouts are known, and there is no indication that she is in hiding, we decline to dismiss her appeal on this basis. II. THE DISTRICT COURT’S JURISDICTION We do, however, affirm dismissal of the District Court Petition for lack of jurisdiction. We review a district court’s dismissal for lack of subject matter jurisdiction de novo. Ass’n of Flight Attendants v. Horizon Air Indus., Inc., 280 F.3d 901, 904 (9th Cir.2002). “The district court’s factual findings relevant to its determination of subject matter jurisdiction are reviewed for clear error.” Id." }, { "docid": "23273986", "title": "", "text": "the appeal is pending. See Parretti v. United States, 143 F.3d 508, 510 (9th Cir.1998) (en banc). “Escape from federal custody is inconsistent with the pursuit of judicial remedies and constitutes a voluntary waiver of any pending judicial review. The [defendant’s act disentitles [him] from calling upon the resources” of the court. Hussein v. INS, 817 F.2d 63, 63 (9th Cir.1986) (internal quotation marks and alterations omitted). The doctrine is a “severe” sanction that we do not lightly impose. Degen v. United States, 517 U.S. 820, 828, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996). But when circumstances warrant, it serves several important interests. Some focus on the wrongfulness of the defendant’s conduct: Disentitlement punishes those who evade the reach of the law and thus discourages recourse to flight. Parretti, 143 F.3d at 511. Others focus on the consequences of the defendant’s absence: Flight frustrates the execution of judgment should the government prevail, id; by invoking the doctrine, we “avoid making decisions that could not be enforced.” United States v. Gonzalez, 300 F.3d 1048, 1051 (9th Cir.2002). The paradigmatic object of the doctrine is the convicted criminal who flees while his appeal is pending. See, e.g., Parretti, 143 F.3d at 509. But the doctrine applies in immigration cases as well. See Zapon v. U.S. Dep’t of Justice, 53 F.3d 283, 285 (9th Cir.1995); Bar-Levy v. U.S. Dep’t of Justice, 990 F.2d 33, 35 (2d Cir.1993); Arana v. INS, 673 F.2d 75, 77 & n. 2 (3d Cir.1982). As we explained in Zapon: “Although an alien who fails to surrender to the INS despite a lawful order of deportation is not, strictly speaking, a fugitive in a criminal matter, we think that he is nonetheless a fugitive from justice. Like the fugitive in a criminal matter, the alien who is a fugitive from a deportation order should ordinarily be barred by his fugitive status from calling upon the resources of the court to determine his claims.” 53 F.3d at 285 (quoting Bar-Levy, 990 F.2d at 35 (citations omitted)). We don’t know for sure whether Antonio-Martinez intentionally fled the reach of the law;" }, { "docid": "21275728", "title": "", "text": "doctrine in other contexts: Litigation entails reciprocal obligations: an appellant (or petitioner) who demands that the United States respect a favorable outcome must ensure that an adverse decision also can be carried out. When an alien fails to report for custody, this sets up -the situation that Antonio-Marbinez called “heads I win, tails you’ll never find me.” A litigant whose disappearance makes an adverse judgment difficult if not impossible to enforce cannot expect favorable action .... Someone who cannot be bound by a loss has warped the outcome in a way prejudicial to the other side; the best solution is to dismiss the proceeding. That proposition is as applicable to the fugitive alien as it is to the fugitive criminal defendant .... Sapoundjiev, 376 F.3d at 728-29 (internal citations omitted) (quoting Antonio-Martinez, 317 F.3d at 1093). We also agree with the Ninth Circuit that applying the fugitive disentitlement doctrine to certain immigration cases “furthers its punitive and deterrent purposes.” Antonio-Martinez, 317 F.3d at 1093. As the Ninth Circuit explained: “Those who disregard their legal and common-sense obligation to stay in touch while their lawyers appeal an outstanding deportation order should be sanctioned. The prospect of disentitlement provides a strong incentive to maintain contact with the INS and counsel, rather than taking one’s continued presence in the country for granted.” Id. Here, it is uncontested that the Giris have become fugitives since they filed their petition for review with this court. Consequently, they now wish to invoke the protection that a favorable decision from this court would provide, without submitting themselves to the risk of an adverse ruling. While it is certainly possible that the Giris may eventually decide to comply with their removal order following an adverse ruling in this matter, there is no indication that they will do so, and thus any decision on the merits, unless it is to petitioners’ liking, may have no practical effect whatsoever. It is, as the Ninth Circuit suggests, akin to a game of heads I win, tails you’ll never find me.” Id. We can find no reason to indulge such conduct, and" }, { "docid": "20006611", "title": "", "text": "receiving it. “It is a longstanding principle that in our system of representative litigation ... each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.” Garcia v. I.N.S., 222 F.3d 1208, 1209 (9th Cir.2000) (quoting Link v. Wabash R.R., 370 U.S. 626, 634, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)) (internal citation and quotation omitted); see also Bruce J. Pierce & Assoc., Inc. v. Resolution, 987 F.2d 663, 665 (10th Cir.1993) (imputing to plaintiff notice received by counsel). DHS’s notice to Mr. Martin’s counsel satisfies the notice requirement. In addition, Mr. Martin failed to comply with his statutory duty to keep DHS abreast of his whereabouts. This is an additional reason to deny his complaint about lack of notice. See Antonio-Martinez v. I.N.S., 317 F.3d 1089, 1092-93 (9th Cir.2003) (appeal dismissed under fugitive disentitlement doctrine where alien failed to notify agency of new address). B. Fugitive Status Next, we consider whether Mr. Martin is actually a fugitive. “Although an alien who fails to surrender to the INS despite a lawful order of deportation is not, strictly speaking, a fugitive in a criminal matter, we think that he is nonetheless a fugitive from justice.” Bar-Levy v. I.N.S., 990 F.2d 33, 35 (2d Cir.1993); see also Gao v. Gonzales, 481 F.3d 173, 176 (2d Cir.2007) (“[F]or an alien to become a fugitive, it is not necessary that anything happen other than a bag-and-baggage letter be issued and the alien not comply with the letter.”); Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir.2004) (“[Ajnyone who is told to surrender, and does not, is a fugitive.”). Here, Mr. Martin not only faded to appear for his scheduled appointment, he also failed to provide DHS with his current address. Given that other courts have found each of these individual failures sufficient to constitute fugitive status in an immigration appeal, we have no reservation about concluding that the two failures together render Mr. Martin a fugitive. Gao, 481 F.3d at 176; Antonio-Martinez, 317 F.3d at 1092;" }, { "docid": "23273987", "title": "", "text": "Cir.2002). The paradigmatic object of the doctrine is the convicted criminal who flees while his appeal is pending. See, e.g., Parretti, 143 F.3d at 509. But the doctrine applies in immigration cases as well. See Zapon v. U.S. Dep’t of Justice, 53 F.3d 283, 285 (9th Cir.1995); Bar-Levy v. U.S. Dep’t of Justice, 990 F.2d 33, 35 (2d Cir.1993); Arana v. INS, 673 F.2d 75, 77 & n. 2 (3d Cir.1982). As we explained in Zapon: “Although an alien who fails to surrender to the INS despite a lawful order of deportation is not, strictly speaking, a fugitive in a criminal matter, we think that he is nonetheless a fugitive from justice. Like the fugitive in a criminal matter, the alien who is a fugitive from a deportation order should ordinarily be barred by his fugitive status from calling upon the resources of the court to determine his claims.” 53 F.3d at 285 (quoting Bar-Levy, 990 F.2d at 35 (citations omitted)). We don’t know for sure whether Antonio-Martinez intentionally fled the reach of the law; perhaps after fifteen years he simply lost interest in his case and wandered off. Even so, he is in default of his legal obligations. He is required by law to notify the INS of any change of address. 8 U.S.C. § 1305(a); 8 C.F.R. § 265.1. He failed to do so, and his counsel and the INS are now unable to locate him because of his dereliction. ■The Third Circuit’s decision in Arana is on point. In that case, the INS had ordered the petitioner to report for deportation. It was unclear whether he ever received the order, because he had moved from his last known address without informing the INS. Arana, 673 F.2d at 76. The court held that he had “apparently” decided to conceal himself by failing to notify the INS of his new address, and dismissed his appeal. Id. at 77. Under the law in effect at the time of Antonio-Martinez’s hearing, an alien could reopen deportation proceedings held entirely in absentia even if the only reason he didn’t know about the" }, { "docid": "20006616", "title": "", "text": "the case were affirmed, the appellant in all likelihood would not surrender.... We are accordingly reluctant to decide what may prove to be a moot case.” Lopez, 552 F.2d at 683. The possible inability to enforce our decision leads us to the second reason for applying the fugitive disentitlement doctrine: “the need for a sanction to redress the fugitive’s affront to the dignity of the judicial process.” Gao, 481 F.3d at 176. Simply put, “a fugitive from justice should not be able to use the judicial system while at the same time avoiding it.” Timbers Preserve, 999 F.2d at 453. Moreover, “dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice.’ ” Hanzlicek, 187 F.3d at 1220 (quoting Ortega-Rodriguez, 507 U.S. at 242, 113 S.Ct. 1199). Application of the facts to this case illustrates the many reasons behind the doctrine. Should we decide to affirm the BIA’s decision, our decision would be virtually superfluous. Because Mr. Martin is nowhere to be found, the decision to deport him would mean nothing unless and until he turned himself in or was found. This worthless judgment, in turn, would be an encouragement to like-minded litigants. In short, if we allow Mr. Martin to pursue his appeal in these circumstances, we risk the integrity of the judicial institution and encourage the recourse of flight. Meanwhile, the government and the judicial system would have wasted time and resources defending and processing an appeal, the result of which could not be enforced. Accordingly, we find no reason not to apply the doctrine in the context of immigration appeals. D. Constitutionality Mr. Martin points out that the Supreme Court has never applied the fugitive disen-titlement doctrine outside the context of a criminal case where the petitioner was an escapee or fugitive from custody, and he contends it would be unconstitutional to extend application of the doctrine to an immigrant’s deportation appeal. Other circuits, however, have flatly rejected the claim that a fugitive immigrant appealing his deportation order is entitled to greater" }, { "docid": "20683532", "title": "", "text": "of address to either his lawyer or the INS for an extended period of time, [petitioner] has effectively put himself beyond the jurisdiction of the court. Because no one has any clue where [petitioner] is, his petition has the same “heads I win, tails you’ll never find me” quality that justifies disentitlement in other contexts. 317 F.3d 1089, 1093 (9th Cir.2003). Although it might be argued that Maldonado’s compliance with his removal order, even if he later returned to the United States, distinguishes his case from the petitioner’s in Antonio-Martinez, I think the two cases are fundamentally similar in the most important respects. We cannot give Maldonado an effective remedy, just as none could be given to the petitioner in Antonio-Martinez. Had today’s majority reached a conclusion that would deny him any relief, Maldonado would remain as unaffected by it as he is by the majority’s granting the petition as they do. I think that our prudential mootness doctrine can be adapted here to function like the fugitive disentitlement doctrine. There are many actual or potential litigants in our system who have not yet been removed and who can petition for review on the merits issues presented in this case. Moreover, there will be others who will return after removal, and who can present the same issues while staying in contact with their counsel. We don’t need to engage in “ghost ship” jurisprudence to give a ruling in a case where there is no one on board the ship of the dispute presented. Instead, we should limit invoking the awesome power of the federal courts to decide important immigration law matters to cases where parties also remain within the effective reach of our court’s jurisdiction so that we can give meaningful relief. We should await such a case before deciding the issue that the majority does today. I respectfully dissent. M. SMITH, Circuit Judge, with whom CLIFTON, Circuit Judge, joins, dissenting: I agree with Judge Gould that we lack jurisdiction to review Maldonado’s claim because his attorney is no longer in contact with him, and there is no evidence that" }, { "docid": "21275727", "title": "", "text": "efficient practice.” Finally, the criminal defendant’s escape is thought to represent an affront to the dignity and authority of the court. 376 F.3d at 411 (alterations in original) (internal quotation marks and footnotes omitted). With these rationales in mind, we now find it proper to extend the fugitive disentitlement doctrine to the immigration context where, as here, the petitioners are fugitive aliens who have evaded custody and failed to comply with a removal order. In so holding, we join with every other circuit that has addressed whether the fugitive disentitlement doctrine applies to appeals from the BIA under similar facts. See Gao v. Gonzales, 481 F.3d 173 (2d Cir.2007) (affirming precedent established in Bar-Levy v. INS, 990 F.2d 33 (2d Cir.1993)); Garda-Flores v. Gonzales, 477 F.3d 439 (6th Cir.2007); Sapoundjiev v. Ashcroft, 376 F.3d 727 (7th Cir.2004); Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir.2003); Arana v. INS, 673 F.2d 75 (3d Cir.1982). The Seventh Circuit’s reasoning is particularly persuasive in light of the justifications advanced by the Supreme Court to support use of the doctrine in other contexts: Litigation entails reciprocal obligations: an appellant (or petitioner) who demands that the United States respect a favorable outcome must ensure that an adverse decision also can be carried out. When an alien fails to report for custody, this sets up -the situation that Antonio-Marbinez called “heads I win, tails you’ll never find me.” A litigant whose disappearance makes an adverse judgment difficult if not impossible to enforce cannot expect favorable action .... Someone who cannot be bound by a loss has warped the outcome in a way prejudicial to the other side; the best solution is to dismiss the proceeding. That proposition is as applicable to the fugitive alien as it is to the fugitive criminal defendant .... Sapoundjiev, 376 F.3d at 728-29 (internal citations omitted) (quoting Antonio-Martinez, 317 F.3d at 1093). We also agree with the Ninth Circuit that applying the fugitive disentitlement doctrine to certain immigration cases “furthers its punitive and deterrent purposes.” Antonio-Martinez, 317 F.3d at 1093. As the Ninth Circuit explained: “Those who disregard their legal and" }, { "docid": "23273992", "title": "", "text": "court. Because no one has any clue where Antonio-Martinez is, his petition , has the same “heads I win, tails you’ll never find me” quality that justifies disentitlement in other contexts. Those who invoke our appellate jurisdiction must take the bitter with the sweet: They cannot ask us to overturn adverse judgments while insulating themselves from the consequences of an unfavorable result. Antonio-Martinez has been gone for well over two years. By all appearances, he is not coming back. The chances that anything we do will have the slightest effect on him are remote in the extreme. His petition for review is accordingly DISMISSED. . There is some confusion over the status of the ABC hearing. Antonio-Martinez's lawyer claims she is still waiting for the government to schedule it, while the government claims Antonio-Martinez failed to avail himself of available remedies. We need not resolve the dispute, because our decision does not depend on who bears the blame for the extended stay. We address Antonio-Martinez's petition for review of the BIA’s 1990 decision, not his entitlement to relief under ABC. . An alien arguably satisfies this requirement by providing the INS with a current address of counsel. See Dobrota v. INS, 311 F.3d 1206, 1213 (9th Cir.2002). But this assumes that counsel knows where to find the alien. See id. (\"an attorney through whom he may be contacted \" (emphasis added)). . This is not a case where a missing appellant is subsequently located. Cf. Ortega-Rodriguez v. United States, 507 U.S. 234, 249-51, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993); Gonzalez, 300 F.3d at 1051. Antonio-Martinez's whereabouts remain unknown. .Former law required only \"reasonable cause\" to reopen, whereas current law requires \"exceptional circumstances.” See Urbina-Osejo, 124 F.3d at 1316 & n. 1; cf. 8 U.S.C. § 1229a(b)(5)(C)(i). Current law also requires orders to show cause to inform aliens of the change of address notification requirement. See Urbina-Osejo, 124 F.3d at 1317 n. 2; cf. 8 U.S.C. § 1229(a)(1)(F). The government does not argue, however, that Antonio-Martinez had actual notice of the requirement." }, { "docid": "23273991", "title": "", "text": "from a criminal defendant on bail pending appeal. See, e.g., Parretti 143 F.3d at 509-10. In either case, the appellant is spared the hardships of deportation or confinement while his case is adjudicated, but he remains subject to the court’s authority and must surrender any time the court deems it appropriate. See 8 U.S.C. § 1105a(a)(3) (repealed 1996). Applying the fugitive disentitlement doctrine here furthers its punitive and deterrent purposes. Those who disregard their legal and common-sense obligation to stay in touch while their lawyers appeal an outstanding deportation order should be sanctioned. The prospect of disentitlement provides a strong incentive to maintain contact with the INS and counsel, rather than taking one’s continued presence in the country for granted. Applying the doctrine here also responds appropriately to the consequences of Antonio-Martinez’s absence. His disappearance has the same effect as a criminal defendant’s flight. By failing to report his change of address to either his lawyer or the INS for an extended period of time, he has effectively put himself beyond the jurisdiction of the court. Because no one has any clue where Antonio-Martinez is, his petition , has the same “heads I win, tails you’ll never find me” quality that justifies disentitlement in other contexts. Those who invoke our appellate jurisdiction must take the bitter with the sweet: They cannot ask us to overturn adverse judgments while insulating themselves from the consequences of an unfavorable result. Antonio-Martinez has been gone for well over two years. By all appearances, he is not coming back. The chances that anything we do will have the slightest effect on him are remote in the extreme. His petition for review is accordingly DISMISSED. . There is some confusion over the status of the ABC hearing. Antonio-Martinez's lawyer claims she is still waiting for the government to schedule it, while the government claims Antonio-Martinez failed to avail himself of available remedies. We need not resolve the dispute, because our decision does not depend on who bears the blame for the extended stay. We address Antonio-Martinez's petition for review of the BIA’s 1990 decision, not his" }, { "docid": "19919125", "title": "", "text": "Seventh Circuit has aptly explained the application of this rationale in the context of an appeal from an unfavorable order of an immigration court: Litigation entails reciprocal obligations: an appellant (or petitioner) who demands that the United States respect a favorable outcome must ensure that an adverse decision also can be carried out. When an alien fails to report for custody, this sets up the situation that Antonio-Martinez [v. INS] called “heads I win, tails you’ll never find me.” 317 F.3d [1089,] 1093 [(9th Cir.2003) ]. A litigant whose disappearance makes an adverse judgment difficult if not impossible to enforce cannot expect favorable action. We observed in Sarlund v. Anderson, 205 F.3d 973 (7th Cir.2000), that after Degen [v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996),] a practical question dominates: has flight made the litigation a one-way street? Someone who cannot be bound by a loss has warped the outcome in a way prejudicial to the other side; the best solution is to dismiss the proceeding. That proposition is as applicable to the fugitive alien as it is to the fugitive criminal defendant (or, in Sarlund, the fugitive civil plaintiff). Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir.2004). This Court has also held in an unpublished opinion that the fugitive disentitlement doctrine “extends to appeals from the Board of Immigration Appeals when an alien fails to surrender despite a lawful order of deportation.” Kacaj v. Gonzales, 163 Fed.Appx. 367, 368 (6th Cir.2006). Here, Garcia-Flores received a final order from the BIA on May 12, 2005, and filed his appeal with this Court on June 8, 2005. He was required to report for removal on July 11, 2005, but instead remained at large. This conduct evinces an intent to avail himself of the “heads I win, tails you’ll never find me” approach, even if his subsequent arrest foiled the effort. Because Garcia-Flores failed to report despite a lawful order requiring him to do so while he was subject to the jurisdiction of this Court, his appeal is dismissed pursuant to the fugitive disentitlement doctrine. ." }, { "docid": "23273990", "title": "", "text": "untimely petition where counsel had failed to notify the BIA of his new address). As a general rule, ignorance of the law is no excuse, see Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), and whatever the current status of the limited exception for in absentia deportation proceedings, it does not extend to those who fail to stay in touch after a deportation order is entered in their presence. Antonio-Martinez’s lawyer argues that her client is not a fugitive at all, because his deportation order has been automatically stayed while his petition hibernates on our docket. See 8 U.S.C. § 1105a(a)(3) (repealed 1996). She misconstrues the effect of the stay. That the order is stayed doesn’t mean it doesn’t exist. So long as a deportation order is outstanding, an alien has a heightened obligation to keep the INS apprised of his whereabouts so that it can take him into custody if and when the stay is lifted. An alien subject to a stayed deportation order is no different from a criminal defendant on bail pending appeal. See, e.g., Parretti 143 F.3d at 509-10. In either case, the appellant is spared the hardships of deportation or confinement while his case is adjudicated, but he remains subject to the court’s authority and must surrender any time the court deems it appropriate. See 8 U.S.C. § 1105a(a)(3) (repealed 1996). Applying the fugitive disentitlement doctrine here furthers its punitive and deterrent purposes. Those who disregard their legal and common-sense obligation to stay in touch while their lawyers appeal an outstanding deportation order should be sanctioned. The prospect of disentitlement provides a strong incentive to maintain contact with the INS and counsel, rather than taking one’s continued presence in the country for granted. Applying the doctrine here also responds appropriately to the consequences of Antonio-Martinez’s absence. His disappearance has the same effect as a criminal defendant’s flight. By failing to report his change of address to either his lawyer or the INS for an extended period of time, he has effectively put himself beyond the jurisdiction of the" }, { "docid": "21275726", "title": "", "text": "discharging [its] traditional responsibilities.” Id. (alterations in original) (footnotes omitted) (quoting Degen v. United States, 517 U.S. 820, 823, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996)); see also United States v. Delagarza-Villarreal, 141 F.3d 133, 136 (5th Cir.1997) (“It is generally accepted that circuit courts have the authority to fashion procedural rules governing the management of litigation before them.”). We have summarized the Supreme Court’s justifications for use of the fugitive disentitlement as follows: First, if a defendant is a fugitive when the court considers his case, it may be impossible for the court to enforce any judgment that it renders. Second, courts have advanced a waiver or abandonment theory: by fleeing custody, the defendant is thought to have waived or abandoned his right to an appeal. Third, allowing a court to dismiss a fugitive’s case is thought to “discourage[ ] the felony of escape and encourage[] voluntary surrenders.” Fourth, because a litigant’s escape impedes the ability of a court to adjudicate the proceedings before it, dismissal of the case furthers the court’s “interest in efficient practice.” Finally, the criminal defendant’s escape is thought to represent an affront to the dignity and authority of the court. 376 F.3d at 411 (alterations in original) (internal quotation marks and footnotes omitted). With these rationales in mind, we now find it proper to extend the fugitive disentitlement doctrine to the immigration context where, as here, the petitioners are fugitive aliens who have evaded custody and failed to comply with a removal order. In so holding, we join with every other circuit that has addressed whether the fugitive disentitlement doctrine applies to appeals from the BIA under similar facts. See Gao v. Gonzales, 481 F.3d 173 (2d Cir.2007) (affirming precedent established in Bar-Levy v. INS, 990 F.2d 33 (2d Cir.1993)); Garda-Flores v. Gonzales, 477 F.3d 439 (6th Cir.2007); Sapoundjiev v. Ashcroft, 376 F.3d 727 (7th Cir.2004); Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir.2003); Arana v. INS, 673 F.2d 75 (3d Cir.1982). The Seventh Circuit’s reasoning is particularly persuasive in light of the justifications advanced by the Supreme Court to support use of the" }, { "docid": "20683514", "title": "", "text": "continues to present a case or controversy because there is solid evidence that he is currently present in the United States. According to the government’s response, since Maldonado’s removal in October 2009, he has updated his California driver’s license. Obtaining deferral of removal under CAT would allow Maldonado to remain in the United States, giving him a clear “personal stake in the outcome of the lawsuit.” See Lewis, 494 U.S. at 478, 110 S.Ct. 1249 (internal quotation marks omitted). It is highly unlikely that Maldonado left the United States since he renewed his driver’s license in 2010. See Gould dissent 1165. Maldonado applied for CAT relief because he fears that, if he returns to Mexico, the enterprise will kill him. Indeed, every time he was removed to Mexico since 2000, the enterprise found and tortured him. Maldonado has little reason to return to Mexico. We disagree with Judge Gould’s dissent that we should invoke the fugitive disentitlement doctrine to dismiss Maldonado’s petition. See Gould dissent 1165— 66. “The fugitive disentitlement doctrine allows us to dismiss a criminal defendant’s appeal if he flees while the appeal is pending.” Antonio-Martinez v. INS, 317 F.3d 1089, 1091 (9th Cir.2003). We have exercised our discretion to apply this equitable doctrine to immigration petitioners, noting the similarity between “[a]n alien subject to a stayed deportation order” and “a criminal defendant on bail pending appeal.” Id. at 1093. The alien, like the defendant, “remains subject to the court’s authority and must surrender any timé the court deems it appropriate.” Id. Thus, in the immigration context, “we have dismissed petitions for review by aliens who have fled custody and cannbt be located when their appeals come before this court.” Wenqin Sun v. Mukasey, 555 F.3d 802, 804 (9th Cir.2009) (emphasis added); see also Zapon v. U.S. Dep’t of Justice, 53 F.3d 283, 285 (9th Cir.1995) (discussing fugitive status where an alien “fail[ed] to surrender ... despite a lawful order of deportation”). Here, Maldonado is not a fugitive because he did not flee. He complied. with his deportation order and was removed to Mexico. We are thus satisfied" }, { "docid": "17430602", "title": "", "text": "including the passage of the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 302 (2005). Among other things, the REAL ID Act consolidated federal court review of certain immigration agency decisions in the courts of appeals while stripping district courts of jurisdiction. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing ... shall be construed as precluding review of constitutional claims or questions of law raised .upon a petition for review filed with an appropriate court of appeals .... ”). Thus, the second round of supplemental briefs addressed whether Ms. Mamigonian’s suit was precluded in district court by the REAL ID Act, and if so, whether we could convert the present appeal into a petition challenging USCIS’s adjustment-of-status denial on constitutional or legal grounds under section 1252(a)(2)(D). DISCUSSION I. FUGITIVE DISENTITLEMENT DOCTRINE We decline to dismiss this appeal on the basis of the fugitive disentitlement doctrine, which is a discretionary sanction courts can impose “to prevent appellate review for escapees from the criminal justice system.” Sun v. Mukasey, 555 F.3d 802, 804 (9th Cir.2009). In the immigration context, this court has denied appellate relief for “aliens who have fled custody and cannot be located” at the time their appeals are pending. Id.; see also Zapon v. U.S. Dep’t of Justice, 53 F.3d 283, 284-85 (9th Cir.1995). Two factors guide our discretion to dismiss an appeal based on the fugitive disentitlement doctrine: “(1) the pragmatic concern with ensuring that the court’s judgment will be enforceable against the appellant; and (2) the equitable notion that a person who flouts the authority of the court waives his entitlement to have his appeal considered.” Sun, 555 F.3d at 804. Ms. Mamigonian’s failure to surrender for her deportation flight on December 27, 2011, does not alone disentitle her from making this appeal. See Arrozal v. Immigration & Naturalization Serv., 159 F.3d 429, 432 (9th Cir.1998) (declining to dismiss appeal for failure to report for deportation because petitioner was no longer a fugitive); cf. Antonio-Martinez v. Immigration & Naturalization Serv., 317 F.3d 1089, 1091-93 (9th Cir.2003) (denying petition for review where petitioner had been “out of touch” with counsel" }, { "docid": "20683531", "title": "", "text": "dismiss under the doctrine of prudential mootness, which allows a court to dismiss an appeal, even if not technically moot, “if circumstances have changed since the beginning of litigation that forestall any occasion for meaningful relief.” Deutsche Bank Nat’l Trust Co. v. F.D.I.C., 744 F.3d 1124, 1135 (9th Cir.2014) (quoting Hunt v. Imperial Merchant Servs., Inc., 560 F.3d 1137, 1142 (9th Cir.2009)); see also Ali v. Cangemi, 419 F.3d 722, 723-24 (8th Cir.2005) (dismissing an appeal as prudentially moot where an immigrant’s whereabouts were unknown after he failed to notify immigration authorities of his change of address). We have applied similar prudential reasoning in immigration cases involving the fugitive disentitlement doctrine. For example, in Antonio-Martinez v. INS we said: Those who disregard their legal and common-sense obligation to stay in touch while their lawyers appeal an outstanding deportation order should be sanctioned. The prospect of disentitlement provides a strong incentive to maintain contact with the INS and counsel, rather than taking one’s continued presence in the country for granted.... By failing to report his change of address to either his lawyer or the INS for an extended period of time, [petitioner] has effectively put himself beyond the jurisdiction of the court. Because no one has any clue where [petitioner] is, his petition has the same “heads I win, tails you’ll never find me” quality that justifies disentitlement in other contexts. 317 F.3d 1089, 1093 (9th Cir.2003). Although it might be argued that Maldonado’s compliance with his removal order, even if he later returned to the United States, distinguishes his case from the petitioner’s in Antonio-Martinez, I think the two cases are fundamentally similar in the most important respects. We cannot give Maldonado an effective remedy, just as none could be given to the petitioner in Antonio-Martinez. Had today’s majority reached a conclusion that would deny him any relief, Maldonado would remain as unaffected by it as he is by the majority’s granting the petition as they do. I think that our prudential mootness doctrine can be adapted here to function like the fugitive disentitlement doctrine. There are many actual or" }, { "docid": "19919124", "title": "", "text": "to dismiss the appeal based on the fugitive-disentitlement doctrine. “Pursuant to th[e] doctrine of fugitive disentitlement, we have dismissed the direct appeals of defendants who fled the jurisdiction during an appeal and remained at large.” United States v. Lanier, 123 F.3d 945, 946 (6th Cir.1997). The Supreme Court has cautioned the Courts of Appeals that fugitive disentitlement is not appropriate in cases where there is no connection between the fugitive status and the appellate process. Ortega-Rodriguez v. United States, 507 U.S. 234, 249, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) (“Absent some connection between a defendant’s fugitive status and his appeal, as provided when a defendant is at large during ‘the ongoing appellate process,’ the justifications advanced for dismissal of fugitives’ pending appeals generally will not apply.”). Despite these limitations, Ortega-Rodriguez also recognized that “dismissal by an appellate court after a defendant has fled its jurisdiction [as opposed to that of the district court] serves an important deterrent function and advances an interest in efficient, dignified appellate practice.” Id. at 242, 113 S.Ct. 1199. The Seventh Circuit has aptly explained the application of this rationale in the context of an appeal from an unfavorable order of an immigration court: Litigation entails reciprocal obligations: an appellant (or petitioner) who demands that the United States respect a favorable outcome must ensure that an adverse decision also can be carried out. When an alien fails to report for custody, this sets up the situation that Antonio-Martinez [v. INS] called “heads I win, tails you’ll never find me.” 317 F.3d [1089,] 1093 [(9th Cir.2003) ]. A litigant whose disappearance makes an adverse judgment difficult if not impossible to enforce cannot expect favorable action. We observed in Sarlund v. Anderson, 205 F.3d 973 (7th Cir.2000), that after Degen [v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996),] a practical question dominates: has flight made the litigation a one-way street? Someone who cannot be bound by a loss has warped the outcome in a way prejudicial to the other side; the best solution is to dismiss the proceeding. That proposition is as" }, { "docid": "20006612", "title": "", "text": "fugitive. “Although an alien who fails to surrender to the INS despite a lawful order of deportation is not, strictly speaking, a fugitive in a criminal matter, we think that he is nonetheless a fugitive from justice.” Bar-Levy v. I.N.S., 990 F.2d 33, 35 (2d Cir.1993); see also Gao v. Gonzales, 481 F.3d 173, 176 (2d Cir.2007) (“[F]or an alien to become a fugitive, it is not necessary that anything happen other than a bag-and-baggage letter be issued and the alien not comply with the letter.”); Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir.2004) (“[Ajnyone who is told to surrender, and does not, is a fugitive.”). Here, Mr. Martin not only faded to appear for his scheduled appointment, he also failed to provide DHS with his current address. Given that other courts have found each of these individual failures sufficient to constitute fugitive status in an immigration appeal, we have no reservation about concluding that the two failures together render Mr. Martin a fugitive. Gao, 481 F.3d at 176; Antonio-Martinez, 317 F.3d at 1092; Bar-Levy, 990 F.2d at 35. C. Fugitive Disentitlement Doctrine The fugitive disentitlement doctrine permits a court to dismiss a defendant’s appeal if he flees while the appeal is pending. “It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993). The doctrine has its origin in the criminal context, see Smith v. United States, 94 U.S. 97, 97, 24 L.Ed. 32 (1876), and arises from a court’s inherent authority to protect its proceedings and judgments. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). The rationale for the doctrine lies primarily in concern for the enforceability of a court’s judgments and a “ ‘disentitlement’ theory that construes a defendant’s flight during the pendency of his appeal as tantamount to waiver or abandonment.” Ortega-Rodriguez, 507 U.S. at 240, 113 S.Ct. 1199. This court has" }, { "docid": "19919126", "title": "", "text": "applicable to the fugitive alien as it is to the fugitive criminal defendant (or, in Sarlund, the fugitive civil plaintiff). Sapoundjiev v. Ashcroft, 376 F.3d 727, 729 (7th Cir.2004). This Court has also held in an unpublished opinion that the fugitive disentitlement doctrine “extends to appeals from the Board of Immigration Appeals when an alien fails to surrender despite a lawful order of deportation.” Kacaj v. Gonzales, 163 Fed.Appx. 367, 368 (6th Cir.2006). Here, Garcia-Flores received a final order from the BIA on May 12, 2005, and filed his appeal with this Court on June 8, 2005. He was required to report for removal on July 11, 2005, but instead remained at large. This conduct evinces an intent to avail himself of the “heads I win, tails you’ll never find me” approach, even if his subsequent arrest foiled the effort. Because Garcia-Flores failed to report despite a lawful order requiring him to do so while he was subject to the jurisdiction of this Court, his appeal is dismissed pursuant to the fugitive disentitlement doctrine. . If Garcia-Flores had reported for deportation, we would still have retained Article III jurisdiction to hear his appeal, even though he would already have been removed to Mexico. See Santana-Albarran v. Ashcroft, 393 F.3d 699, 701 n. 1 (6th Cir.2005) (\"removal of an alien ... does not moot a pending appeal”). He would have continued to suffer an ongoing injury from the order of removal after his deportation because he would have been prevented from seeking re-entry for five years after his removal. See 8 U.S.C. § 1182(a)(9)(A)(i); Chong v. District Director, INS, 264 F.3d 378, 385 (3d Cir.2001); Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000)." }, { "docid": "23273985", "title": "", "text": "we granted further stays in 1994, 1995, 1998 and 1999. Apparently, no progress has been made on Antonio-Martinez’s efforts to obtain an ABC asylum hearing. In October 2000, Antonio-Martinez’s then-counsel informed us that he had lost contact with his client. The lawyer had sent several letters to his last known address and contacted numerous other people, but had been unable to locate him and “ha[d] no direct knowledge of [his] status.” Further efforts to track down Antonio-Martinez by both counsel and the INS have been unavailing. He has now been out of touch for well over two years. In light of Antonio-Martinez’s absence, a motions panel refused to further extend the de facto stay of proceedings and sua sponte reinstated his petition for review of the BIA’s 1990 decision. The government now asks us to dismiss the petition under the fugitive disentitlement doctrine. It argues that Antonio-Martinez, by perambulating to parts unknown, has forfeited his right to review. Analysis The fugitive disentitlement doctrine allows us to dismiss a criminal defendant’s appeal if he flees while the appeal is pending. See Parretti v. United States, 143 F.3d 508, 510 (9th Cir.1998) (en banc). “Escape from federal custody is inconsistent with the pursuit of judicial remedies and constitutes a voluntary waiver of any pending judicial review. The [defendant’s act disentitles [him] from calling upon the resources” of the court. Hussein v. INS, 817 F.2d 63, 63 (9th Cir.1986) (internal quotation marks and alterations omitted). The doctrine is a “severe” sanction that we do not lightly impose. Degen v. United States, 517 U.S. 820, 828, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996). But when circumstances warrant, it serves several important interests. Some focus on the wrongfulness of the defendant’s conduct: Disentitlement punishes those who evade the reach of the law and thus discourages recourse to flight. Parretti, 143 F.3d at 511. Others focus on the consequences of the defendant’s absence: Flight frustrates the execution of judgment should the government prevail, id; by invoking the doctrine, we “avoid making decisions that could not be enforced.” United States v. Gonzalez, 300 F.3d 1048, 1051 (9th" } ]

[ { "docid": "19190103", "title": "", "text": "testified that Forrest had been sitting on the chair on which a baggie of crack was found. A small scale was found. Agents also found a photograph of Forrest holding Featherstone’s child in the house and a dry cleaning claim ticket in his name. On December 19, 1991, a federal grand jury indicted Forrest on two counts of violating federal narcotics laws: (1) conspiracy to distribute and to possess with intent to dis tribute more than five grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and (2) distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A jury convicted Forrest on both counts. Forrest appeals the convictions on the grounds that the evidence was insufficient to convict him and that prejudicial trial testimony regarding his criminal history warranted the granting of a mistrial. II In his appeal, Forrest argues that the district court erred in denying his motion for judgment of acquittal on the ground that the verdict was contrary to the weight of the evidence and not supported by substantial evidence. The standard of review for claims of insufficient evidence is “whether, after reviewing 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); United States v. Phibbs, 999 F.2d 1053, 1063 (6th Cir.1993). The record indicates sufficient evidence upon which a rational juror could find Forrest guilty of distribution of and conspiracy to distribute crack cocaine. A. Drug Conspiracy Forrest was convicted of conspiracy to distribute and to possess with intent to distribute crack cocaine under 21 U.S.C. §§ 841(a)(1) (manufacture, distribution, or dispensing of controlled substance unlawful) and 846 (conspiracy to violate drug laws). The elements of a drug conspiracy are (1) that an agreement to violate the drug laws existed; and (2) that each conspirator knew of, intended to join, and participated in the conspiracy. Phibbs, 999 F.2d" } ]

[ { "docid": "23199442", "title": "", "text": "determine that Wettstain and Stewart were involved in a conspiracy to possess with the intent to distribute 500 grams or more of a mixture containing methamphetamine between February 2004 and February 2007. Accordingly, we affirm their convictions on Count I. Count IV Wettstain and Stewart also challenge the sufficiency of the evidence to support their convictions on Count IV, specifically, that on or about January 11, 2007, Stewart, Wettstain, and Higdon, aided and abetted by each other, knowingly and intentionally possessed with the intent to distribute an unspecified amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1). To demonstrate possession with the intent to distribute a controlled substance under § 841(a)(1), the government must prove, beyond a reasonable doubt, that: (1) the defendants knowingly, (2) possessed a controlled substance, (3) with the intent to distribute. United States v. Coffee, 434 F.3d 887, 897 (6th Cir.2006). Higdon’s testimony established that Stewart arranged for Wettstain and Higdon to pick up eight ounces of methamphetamine on January 11, 2007, and that they located the methamphetamine based on Stewart’s instructions. The government can base a conviction under § 841(a)(1) upon a showing of either actual or constructive possession. See United States v. Hill, 142 F.3d 305, 312 (6th Cir.), cert. denied, 525 U.S. 898, 119 S.Ct. 225, 142 L.Ed.2d 185 (1998). “Constructive possession requires evidence supporting the conclusion that the defendant had the ability to exercise knowing ‘dominion and control’ over the items in question.” United States v. Morris, 977 F.2d 617, 619 (D.C.Cir.1992) (internal citation omitted).... A jury may also find the intent to distribute drugs from the large quantity involved. See, e.g., United States v. Faymore, 736 F.2d 328, 333 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984). United States v. Perkins, No. 98-1640, 1999 WL 777537, at *2 (6th Cir. Sept.16, 1999) (unpublished). Accordingly, the fact that Stewart was not physically present at the January 11, 2007, transaction is of no moment. The jury presumptively credited Higdon’s testimony that he witnessed Wettstain receive a phone call from Stewart, in which Stewart told Wettstain to" }, { "docid": "23080535", "title": "", "text": "counts against him. Huckelby and Phibbs were both convicted of conspiracy and on nine distribution counts. Whited was convicted of conspiracy and on three distribution counts. Murr was found guilty of conspiracy, managing a continuing criminal enterprise, and on 10 distribution counts. Kenneth Lawson, who was tried in absentia, was convicted of conspiracy and on 10 distribution counts. William Baird, who had been partially successful on a motion for judgment of acquittal, was found not guilty of the remaining charges against him. II. Raymond Huckelby Sufficiency of the Evidence Huckelby contends that the evidence presented at trial was insufficient to support his conviction for conspiracy to possess cocaine with the intent to distribute the drug (21 U.S.C. § 846); as well as on nine counts of possession of cocaine, or aiding and abetting the possession of cocaine, with the intent to distribute (21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2). The standard of review for claims of insufficient evidence is “whether, after reviewing 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.” United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)) (emphasis in original). In order to obtain a conviction pursuant to 21 U.S.C. § 846, “the government must prove the existence of an agreement to violate the drug laws and that each conspirator knew of, intended to join and participated in the conspiracy.” United States v. Pearce, 912 F.2d 159, 161 (6th Cir.1990) (quoting United States v. Stanley, 765 F.2d 1224, 1237 (5th Cir.1985)). No formal or express agreement is necessary to establish a conspiracy under § 846. United States v. Hughes, 891 F.2d 597, 601 (6th Cir.1989). “[A] tacit or mutual understanding among the parties” is enough. Id. The essential elements of a violation of 21 U.S.C. § 841(a)(1) are “for any person knowingly or intentionally to ... possess with intent to ... distribute ... a controlled substance.” See United States" }, { "docid": "1340330", "title": "", "text": "that Randall was guilty of conspiracy to possess cocaine with intent to distribute it. In reviewing such findings, we are limited to inquiring whether a reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc) aff'd 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Count I charged that all the defendants had conspired to commit the offense denounced by 21 U.S.C. section 841(a)(1): knowingly or intentionally to distribute a controlled substance or to possess with intent to distribute a controlled substance, in this case cocaine hydrochloride. Randall argues that there could be no conspiracy because there was no evidence that anyone other than he was involved in the sale. This argument cannot withstand the overwhelming evidence of conspiracy that Randall himself supplied to the informant. In the taped conversations with the informant, Randall refers to having negotiated with his drug source about the price. Randall also stated that the source would travel to Slidell with him and stay in a separate hotel room. Randall further told the informant that the cocaine was being kept in another room by two other individuals, later discovered to be Rice and Lybret-ti. Without restating all of the evidence presented by the government, it is clear that the jury appropriately found Randall guilty of conspiracy to possess cocaine with intent to distribute it. Randall next assails the sufficiency of the evidence to support the jury’s finding that he was in active or constructive possession of the cocaine in room 223. Randall was convicted on a second count in the indictment for possession with intent to distribute cocaine, in violation of 21 U.S.C. section 841(a)(1) and 18 U.S.C. section 2. Under 841(a)(1), the government must prove either actual or constructive possession. Randall contends that, although only a small amount of cocaine was found on his person, he was found guilty of possession with intent to distribute two kilograms. These two kilograms were found in room 223. As Randall maintains, the government must prove Randall’s constructive possession" }, { "docid": "12067148", "title": "", "text": "BROWN THURMAN Both Brown and Thurman challenge the sufficiency of the evidence to support their convictions. Brown challenges the sufficiency of the evidence to support his conviction on counts one and two, and Thurman challenges the evidence to support her conspiracy conviction on count one. For purposes of a sufficiency challenge, we view the evidence presented and all inferences reasonably drawn therefrom in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Brown and Thurman were both convicted of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. § 846. Under § 846, the government must prove: 1) the existence of an agreement between two or more persons; 2) the defendant’s knowledge of the agreement; and 3) the defendant’s voluntary participation in the conspiracy. United States v. Maltos, 985 F.2d 743, 746 (5th Cir.1992). Brown and Thurman both argue that the government failed to prove that they knowingly participated in a conspiracy. We have recognized that a “jury may infer a conspiracy agreement from circumstantial evidence and may rely upon presence and association, along with other evidence, in finding that a conspiracy existed.” United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.1989). Brown was also convicted of aiding and abetting the possession of cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). To support a conviction under § 841(a)(1), the government must prove beyond a reasonable doubt the 1) knowing; 2) possession of a controlled substance; 3) with the intent to distribute it. United States v. Sacerio, 952 F.2d 860, 866 (citing United States v. Garcia, 917 F.2d 1370, 1376 (5th Cir.1990)). Brown argues that the government failed to prove that he knowingly aided and abetted the possession of cocaine. Possession of contraband with intent to distribute it may be actual or constructive, and may be proven by circumstantial or direct evidence. United States" }, { "docid": "48900", "title": "", "text": "In the case sub judice, we find that, even when taking all of the evidence in a fight most favorable to the Government, the Government did not present sufficient evidence at trial with which a reasonable jury could have found Jenkins to be guilty beyond a reasonable doubt of the charged offense. As noted supra, the Indictment returned against Jenkins charged her with knowingly and intentionally possessing, with the intent to distribute, at least fifty grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1), and therefore, the district court properly charged the jury that it must find, beyond a reasonable doubt, that Jenkins knew that the contents of the express mail package was cocaine base. See United States v. Harris, 293 F.3d 970, 974 (6th Cir.2002)(listing the essential elements which must be established in order to sustain a conviction under 21 U.S.C. § 841(a)(1)). Despite the jury’s finding to the contrary, we do not believe that the Government presented sufficient evidence on this element. In order to establish this element, the Government relied principally upon the testimony of Kramer, who testified that Jenkins had admitted that she was a crack user and that she obtained her crack from someone other than Ingram, and upon the testimony of Gibson, who testified about his conversation with Jenkins regarding her receipt of the express mail packages. We have already concluded that the district court abused its discretion in allowing Kramer to offer testimony regarding Jenkins’ prior crack cocaine usage, and we will presume that the district court’s error was reversible unless we can say, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.... ” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Whether the jury was “substantially swayed” by the improper admission of evidence of other acts in a criminal trial generally depends on whether the properly admissible evidence of the defendant’s guilt was overwhelming. Haywood, 280 F.3d at 724. Here, there was a clear absence of" }, { "docid": "8806734", "title": "", "text": "sold cocaine on previous occasions. The jury could infer intent from Turpin’s past conduct. United States v. Lewis, 759 F.2d 1316, 1349 (8th Cir.), cert. denied, 474 U.S. 994 (1985). Moreover, evidence of intent “may be inferred from such things as the possession of a large quantity of a controlled substance, its high purity level, the presence of paraphernalia used to aid in its distribution, large sums of unexplained currency, and the presence of firearms.” Matra, supra, 841 F.2d at 841. In the instant case, Turpin was found to be in constructive possession of over 150 grams of between 86 and 71 percent pure cocaine base. Furthermore, the police recovered $4,700 in cash from the briefcase that contained the cocaine and also found small plastic bags of the type that testimony indicated previously had been used to package cocaine. There was ample evidence presented at trial from which the jury could have inferred intent. We hold that the district court did not err in denying Turpin’s motion for a judgment of acquittal on the count charging her with violating § 841(a)(1) and (b)(1)(A), since a reasonable jury could have found that Turpin was in constructive possession of the cocaine found in her motel room and that she intended to distribute it. (B) Turpin also contends that there was insufficient evidence to convict her on count two, which charged her with conspiracy to possess cocaine with the intent to distribute it in violation of 21 U.S.C. § 846 (1988). We hold that there was sufficient evidence to convict her of that charge. To sustain Turpin’s conviction under § 846, the government had to prove that “[s]he entered into an agreement with at least one other person and that the agreement had as its objective a violation of the law.” United States v. Foote, 898 F.2d 659, 663 (8th Cir.), cert. denied, 111 S.Ct. 112 (1990). The government is not required to prove the commission of any overt acts in furtherance of the conspiracy to sustain a conviction under § 846. United States v. Figueroa, 900 F.2d 1211, 1218 (8th Cir.), cert." }, { "docid": "14959474", "title": "", "text": "“Under this stern standard, a court, whether at the trial or appellate level, may not usurp the role of the jury by substituting its own determination of the weight of the evidence and the reasonable inferences to be drawn for that of the jury.” United States v. MacPherson, 424 F.3d 183, 187 (2d Cir.2005) (internal quotation marks, citations, brackets, and ellipsis omitted). Rather, a court may enter a judgment of acquittal only if “the evidence that the defendant committed the crime alleged is nonexistent or so meager that no reason able jury could find guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted) (emphasis added). B. The Specific Intent Element of § 841(a)(1) Possession Crimes Title 21 U.S.C. § 846 makes it a crime for any person to “attempt[ ] or conspire! ] to commit any offense defined in this sub-chapter.” Among the offenses defined in 21 U.S.C. § 841(a)(1) is the knowing possession of a controlled substance “with intent to ... distribute.” This is in contrast to 21 U.S.C. § 844, which makes it a lesser offense to possess a controlled substance without regard to its intended disposition. Thus, to convict Heras of conspiring or attempting to possess cocaine in violation of § 841(a)(1), the government was required to prove that he acted with the specific intent that the cocaine at issue be distributed. See, e.g., United States v. Torres, 604 F.3d 58, 65 (2d Cir.2010) (observing that to convict defendant of § 841(a)(1) conspiracy, “the government ‘must prove at least the degree of criminal intent necessary for the substantive offense’ ” (quoting United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975))); United States v. Ogando, 547 F.3d 102, 107-08 (2d Cir.2008) (noting that § 841(a)(1) conspiracy and aiding and abetting convictions “require[ ] a showing of specific intent”); see generally United States v. Garcia, 587 F.3d 509, 515 (2d Cir.2009) (holding that, in conspiracy cases, government must show that defendant “knowingly engaged in the conspiracy with the specific intent to commit the offense[ ] that [is] the object[ ] of the" }, { "docid": "22209909", "title": "", "text": "most favorable to the government, we conclude it was substantial and sufficient to overcome a motion for acquittal and to allow a reasonable jury to determine beyond a reasonable doubt Mr. McKissick was a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). 2. Count 3: Possession of Cocaine Base with Intent to Distribute in Violation of 21 U.S.C. § 841(a)(1) Mr. McKissick also contends the evidence was insufficient to support his conviction of possession with intent to distribute the sixty-three grams of cocaine base found on the back floorboard of his car. To establish a violation of 21 U.S.C. § 841(a)(1), the Government must prove the defendant: (1) possessed the controlled substance; (2) knew he possessed the controlled substance; and (3) intended to distribute or dispense the controlled substance. United States v. Dozal, 173 F.3d 787, 797 (10th Cir.1999). The possession of the controlled substance may be actual or constructive. “Constructive possession may be established by circumstantial evidence and may be joint among several individuals.” United States v. Carter, 130 F.3d 1432, 1441 (10th Cir.1997) (quotation marks and citation omitted), cert. denied, 523 U.S. 1144, 118 S.Ct. 1856, 140 L.Ed.2d 1104 (1998). “Possession is constructive, rather than actual, when the defendant knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics are found.” Dozal, 173 F.3d at 797 (quotation marks and citations omitted). See also United States v. Ruiz-Castro, 92 F.3d 1519, 1531 (10th Cir.1996) (defining constructive possession of a narcotic as “an appreciable ability to guide the destiny of the drug”) (quotation marks and citation omitted). In cases involving joint occupancy of a place where contraband is found, mere control or dominion over the place in which the contraband is found is not enough to establish constructive possession. United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). In such cases, the government is required to present “direct or circumstantial evidence to show some connection or nexus individually linking the defendant to the contraband.” United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir.1998). The government must present “some" }, { "docid": "23686485", "title": "", "text": "Dale, 178 F.3d at 431 (emphasis added). Under those circumstances, the general guilty verdict told us only that the jurors had reached a unanimous agreement on this issue, but did not disclose the specific ground — i.e., crack, marijuana, or both— upon which the jurors had agreed. Thus, it would have been improper to impose a sentence based on a conspiracy to distribute crack, when it was possible that the jury had found a conspiracy to distribute only marijuana, and not crack. In contrast, the jury here was instructed as follows: Intent to Distribute and Distribution of Marijuana and Cocaine Count One charges that the defendants did, knowingly and intentionally, unlawfully combine, conspire, confederate, and agree with each other and other persons to possess with intent to distribute and to distribute marijuana and cocaine, Schedule I and II Controlled Substances, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846.... Title 21 U.S.C. § 841(a)(1) makes it a crime for anyone to knowingly or intentionally possess a controlled substance with intent to distribute it. Marijuana and cocaine are controlled substances within the meaning of the-law. For you to find the defendants guilty of violating 21 U.S.C. § 841(a)(1), you must be convinced that the government has proved beyond a reasonable doubt: (1) That defendants knowingly possessed controlled substances; (2) That the substances were in fact marijuana and cocaine; and (3) That defendants possessed the substances with the intent to distribute them. jji ^ ‡ H* $ Conspiring to Distribute Marijuana and Cocaine Count One also charges that the defendants violated Title 21 U.S.C. § 846, which makes it a crime for anyone to conspire with someone else to commit a violation of certain controlled substances laws of the United States. * ❖ * * * $ For you to find the defendants guilty of violating 21 U.S.C. § 846, you must be convinced that the government has proved beyond a reasonable doubt: (1)That two or more persons, directly or indirectly, reached an agreement to possess with intent to distribute marijuana and cocaine; (2) That defendants knew of the" }, { "docid": "22276401", "title": "", "text": "5861(d), and aiding and abetting in the drug and firearms offenses, in violation of 18 U.S.C. § 2. The jury acquitted defendant, and a co-defendant named Dwight Champion, of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846. Defendant appeals the sufficiency of the evidence supporting his convictions for possession of cocaine base with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. He also argues that the district court erred in allowing a stipulation by the government. II. A. Sufficiency of the Evidence Supporting the 21 U.S.C. § 81pl Conviction Defendant argues that he possessed the cocaine for personal use and there was insufficient evidence of his in tent to distribute. We review claims of insufficient evidence to determine “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, 61 L.Ed.2d 560 (1979). Section 841(a)(1) provides that it is unlawful for any person knowingly or intentionally to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). To establish a violation of § 841(a)(1), the government must prove the following elements: “(1) knowing (2) possession of a controlled substance (3) with intent to distribute.” United States v. Christian, 786 F.2d 203, 210 (6th Cir.1986) (citation omitted). Circumstantial evidence alone can be sufficient to sustain a conviction. United States v. Clark, 928 F.2d 733, 736 (6th Cir.1991). The government introduced evidence that defendant possessed 2.3 grams of crack cocaine at a house that he had rented for cash two weeks prior to the search, and 1.7 more grams were on the ground outside the house. There was testimony that 2.3 grams would not likely be a personal use amount; a witness stated that dealers usually sell a “rock” of about 0.2 grams to users. Circumstantial evidence, including razor blades, scales, a scanner, a sawed-off shotgun, and a barricaded door," }, { "docid": "23325320", "title": "", "text": "accessories) and other drugs. Both the defendant and his wife were arrested and charged under 21 U.S.C. § 841. Charges against Mrs. Noibi were ultimately dismissed when her trial resulted in a hung jury, but the defendant was convicted in a separate jury trial on 12 February 1985. He was sentenced to a term of four years. ANALYSIS In order to convict Mr. Noibi, the government had to prove beyond reasonable doubt (1) knowledge; (2) possession; and (3) intent to distribute the controlled substance. 21 U.S.C. § 841(a). The defendant does not dispute that intent to distribute can be proven constructively; it can be inferred from the nature of the substance, its amount, and surrounding circumstances. However, he contends that he has not been proven ever to have possessed the heroin and also that the government has not proven his knowledge of the substance. Since this case comes to us as an appeal of a jury verdict, we must view the evidence which was before the jury in the light most favorable to the government and must give the government the benefit of all reasonable inferences which may be logically drawn from the evidence, overturning the jury’s verdict only if the evidence so viewed is such that a reasonable-minded jury must have entertained a reasonable doubt as to the government’s proof of one of the essential elements of the offensé. United States v. Netz, 758 F.2d 1308, 1310 (8th Cir.1985) (per curiam). Bearing in mind the heavy burden borne by a defendant seeking to overturn a jury verdict, we turn to a review of the evidence upon which Mr. Noibi was convicted. The heroin was found in its original package with Mr. Noibi’s fingerprints on the inner wrapper moments after it was picked up at the Post Office. This package had been placed in a dresser-drawer in the bedroom used by the Noibi adults. These facts are sufficient to show that the drugs were within the control of the defendant when they were found. Possession of drugs can be joint, as in this case, when the defendant has the power" }, { "docid": "1340331", "title": "", "text": "him and stay in a separate hotel room. Randall further told the informant that the cocaine was being kept in another room by two other individuals, later discovered to be Rice and Lybret-ti. Without restating all of the evidence presented by the government, it is clear that the jury appropriately found Randall guilty of conspiracy to possess cocaine with intent to distribute it. Randall next assails the sufficiency of the evidence to support the jury’s finding that he was in active or constructive possession of the cocaine in room 223. Randall was convicted on a second count in the indictment for possession with intent to distribute cocaine, in violation of 21 U.S.C. section 841(a)(1) and 18 U.S.C. section 2. Under 841(a)(1), the government must prove either actual or constructive possession. Randall contends that, although only a small amount of cocaine was found on his person, he was found guilty of possession with intent to distribute two kilograms. These two kilograms were found in room 223. As Randall maintains, the government must prove Randall’s constructive possession of that cocaine. Actual possession is defined as knowingly having direct physical control over a thing at a given time. Randall asserts that to connect him with the cocaine found in room 223, it must be assumed that the cocaine the informant saw in the bag in room 205 was the same cocaine later found in room 223. The informant saw two kilos of cocaine that were displayed to him out of a bag by Randall. Surveillance agents saw Randall travel with a bag to room 205 during these negotiations. The government sufficiently established actual possession of the cocaine on Randall’s part. Randall further contends that the evidence was insufficient to support the jury’s finding that he was guilty of carrying a firearm in relation to a drug trafficking crime. To establish the offense, the government must prove beyond a reasonable doubt that Randall committed a drug trafficking crime and that, during and in relation to that crime, he knowingly and intentionally used or carried a firearm. It is sufficient that the firearm be within" }, { "docid": "4076177", "title": "", "text": "a reasonable jury could find guilt beyond a reasonable doubt”). This standard recognizes that courts give “full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact.” United States v. Reese, 561 F.2d 894, 898 (D.C.Cir. 1977); see also United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). Because the jury is entitled to draw reasonable inferences from the evidence presented, “there is no requirement of direct evidence against the defendant; the evidence may be entirely circumstantial.” Poston, supra, 902 F.2d at 94, n. 4; see also United States v. Simmons, 663 F.2d 107, 108 (D.C.Cir.1979). In short, courts review a jury’s determination “very deferentially.” Harrison, supra, 931 F.2d at 71. Ms. Johnson and Mr. Brawner renew their motions for judgment of acquittal. Both contend that the evidence adduced at trial does not support the verdicts rendered against them. Specifically, Ms. Johnson argues that the mere “ownership” of the house cannot constitute an adequate basis for inferring that she had actual or constructive possession of the drugs, nor does it prove that she had any knowledge of the activities taking place within the premises when she was not present. Mr. Brawner claims that there was insufficient evidence to support the jury’s finding that he had either actual or constructive possession of the drugs or the gun. The Court considers each of the Defendants’ claims in turn. A. THERE WAS SUFFICIENT EVIDENCE TO SUPPORT MS. JOHNSON’S CONVICTIONS. The jury convicted Ms. Johnson of possession with intent to distribute 5 or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and with knowingly and intentionally making available for use a building for the purpose of distributing, storing or using a controlled substance in violation of 21 U.S.C. § 856(a). Upon careful review of the evidence and testimony adduced at trial, the Court finds that both of these charges are supported by the evidence. Ms. Johnson argues that the Government did not prove that she had knowledge of the drugs, as the drugs were hidden in the bedroom closet." }, { "docid": "9745134", "title": "", "text": "behind his home. In Officer Hoell’s estimation, these plants were well-tended. Half of the marijuana patches were weeded and the marijuana plants were green, lush, and growing thick, even though the grass surrounding the plants was brown and dry. Moreover, Officer Hoell found the marijuana plants in the garden growing in rows. Finally, Bernitt also admitted at trial that he picked leaves from the plants growing alongside his house to make “herbal tea” to ease the taking of his medication. Viewing these facts in the light most favorable to the government, they together evince cultivating and harvesting of marijuana. We conclude there is sufficient evidence of “manufacturing” marijuana to sustain the jury’s verdict. 2. Count Two: Possessing Marijuana with Intent to Deliver Bernitt claims that there was no evidence before the jury establishing that he made any sales or deliveries of marijuana to anyone. To prove that the defendant possessed marijuana with the intent to deliver, the prosecution had to prove beyond a reasonable doubt the following: (1) that the defendant knowingly or intentionally possessed marijuana; (2) that the defendant possessed marijuana with the intent to distribute it; and (3) that the defendant knew the substance he possessed and sought to distribute was a controlled substance. 21 U.S.C. § 841(a)(1); see also United States v. Starks, 309 F.3d 1017, 1022 (7th Cir.2002). While there appears to have been no direct evidence presented which showed that Bernitt processed the drug for commercial purposes or delivered it to anyone, this circuit’s precedent holds that the quantity and packaging of drugs, as well as the presence of drug paraphernalia, can be sufficient to support the inference of an intent to distribute. Hence, this evidence can support a conviction for possession with intent to distribute under 21 U.S.C. § 841(a). See United States v. Folks, 236 F.3d 384, 390-92 (7th Cir.2001) (finding that plastic bags and a scale covered with drug residue constituted evidence to support conviction for possession with intent to distribute a controlled substance); United States v. Billops, 43 F.3d 281, 285 n. 5 (7th Cir.1994) (“A conviction for possession with intent" }, { "docid": "15211333", "title": "", "text": "court “must examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences.” United States v. Temple, 890 F.2d 1043, 1045 (8th Cir.1989). Reversal is only proper when “the court concludes that a reasonable fact finder could not have found the defendant guilty beyond a reasonable doubt.” Id. The evidence needs to “be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty,” and does not need to “exclude every reasonable hypothesis of innocence.” Id. a. Possession with the Intent to Distribute. Count I of the indictment charged appellants with possessing with the intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A). In relevant part, 21 U.S.C. § 841 states: “(a) Except as authorized by this subehapter, it shall be unlawful for any person knowingly or intentionally—(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; ....” 21 U.S.C. § 841(a)(1) (1992). This court has held that possession may be actual or constructive. United States v. Swinney, 970 F.2d 494, 497 (8th Cir.1992). One has constructive possession if that person has “knowledge of the presence [of the contraband] plus control” or “ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.” Temple, 890 F.2d at 1045. “It is enough if one person is sufficiently associated with another having physical possession that he is able to produce a controlled substance for a customer.” Swinney, 970 F.2d at 497. Upon reviewing the evidence in the light most favorable to the government, the court finds that the evidence presented at the trial was sufficient to support the convictions. In order to convict a defendant under 21 U.S.C. § 841, the trier of fact must find that the evidence supports that (1) the defendant knowingly possessed cocaine and (2) that defendant intended to distribute the cocaine. United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988). Appellant Wesley admitted to knowledge and control over the" }, { "docid": "2812883", "title": "", "text": "trial. Therefore, Bruton is inapplicable, and Simms’s claim of ineffective assistance of counsel fails. B. Edwin Ricketts Ricketts argues that there was insufficient evidence to convict him of possession of cocaine base and that the district court erred by not granting his motion for judgment of acquittal. Again, “we must affirm the conviction if, after viewing the evidence in the light most favorable to the government and giving the government the benefit of all reasonable inferences, we conclude that a reasonable jury, could have found [Ricketts] guilty beyond a reasonable doubt.” Mejia, 8 F.3d at 5. To meet its burden of proof for a violation of 21 U.S.C. § 841(a)(1), the government must prove beyond a reasonable doubt that the Ricketts “knowingly possessed cocaine with intent to distribute it.” United States v. Bennett, 956 F.2d 1476, 1482 (8th Cir.1992). Ricketts argues that the package was not in his actual or constructive possession because there was no evidence suggesting that he knowingly possessed cocaine base. In support of this argument, Ricketts relies heavily on United States v. Pace, 922 F.2d 451 (8th Cir.1990). We find Pace factually distinguishable from this case and conclude that there was sufficient evidence to support the jury’s verdict. In Pace, the defendant was arrested while driving a car with almost two hundred pounds of cocaine hidden in his passenger and codefendant’s baggage. 922 F.2d at 452. The defendant testified that he had been hired by his codefendant to drive the car from Los Angeles to Chicago for $250 and that he did not know he was carrying cocaine. This testimony was corroborated by the codefendant, who testified that he did not tell the defendant that they were transporting cocaine. This Court found the evidence insufficient to support a finding of knowing possession and reversed the defendant’s conviction. Id. at 453. In contrast, the evidence in this case was more than sufficient to support the jury’s finding that Ricketts knew the package contained cocaine base. Detective Lachen-icht testified at trial that Ricketts came to the door and said, “I’ll take that,” when the package was delivered, signed" }, { "docid": "23454540", "title": "", "text": "the sufficiency of the evidence, we “ask only whether taking the evidence ... together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” Green, 435 F.3d at 1272 (internal quotation marks omitted). 1) Counts 3 and U — possession with intent to distribute cocaine and marijuana Count 3 charged McCullough with possession with intent to distribute five hundred grams or more of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1). Count 4 charged McCullough with possession with intent to distribute a detectable amount of marijuana, in violation of 21 U.S.C. § 841(a)(1). In order to convict McCullough of these charges, the government had to prove that he: “(1) possessed the controlled substance[s]; (2) knew he possessed the controlled substance[s]; and (3) intended to distribute or dispense the controlled substance[s].” United States v. Bowen, 437 F.3d 1009, 1014 (10th Cir.2006) (internal quotation marks omitted). In challenging the sufficiency of the evidence supporting these convictions, McCullough focuses solely on the first of these elements, i.e., possession. In particular, McCullough argues that “no evidence was presented that [he] was a co-owner of the residence” where the narcotics were found. McCullough Br. at 38. “In fact,” McCullough argues, the evidence indicated that he “own[ed] his own residence at 3315 Webster” in Kansas City, Kansas. Id. Further, McCullough argues, “[n]o testimony was offered that [he] knew drugs were located in the home” at 3244 Cleveland. Id. at 39. Possession of a controlled substance can be either actual or constructive. See United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir.2000). Constructive possession exists where “a person knowingly has ownership, dominion[,] or control over the narcotics and the premises where the narcotics are found.” United States v. Reece, 86 F.3d 994, 996 (10th Cir.1996) (internal quotation marks omitted). We have alternatively defined constructive possession of a controlled substance as “an appreciable ability to guide the destiny of the drug.” United States v. Carter, 130 F.3d 1432, 1441" }, { "docid": "12068935", "title": "", "text": "(1990) (without probable cause, police may conduct a search incident to an arrest of a person in a residence of “spaces immediately adjoining the place of arrest;” with reasonable suspicion that “the area [to be] swept harbor[s] an individual posing a danger to the officer or others,” police may conduct a warrantless protective sweep of other parts of the premises in which the arrest occurs). Thus, the second search of the closet to look under the blanket and the search of the bathroom were justified. Defendant next argues that there was insufficient evidence presented at trial to sustain each of his three convictions. Evidence is sufficient to support a criminal conviction if a reasonable jury could find the defendant guilty beyond a reasonable doubt, given the direct and circumstantial evidence, along with reasonable inferences therefrom, taken in a light most favorable to the government. United States v. Ray, 973 F.2d 840, 841-42 (10th Cir.1992). In order to sustain a conviction for possession with intent to distribute under 21 U.S.C. § 841(a)(1), the government must prove that the defendant: (1) possessed a controlled substance, (2) knew he possessed a controlled substance, and (3) intended to distribute the controlled substance. United States v. Hager, 969 F.2d 883, 888 (10th Cir.), cert. denied, — U.S.-, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992). Possession of a controlled substance may be either actual or constructive, and constructive possession occurs when a person “knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics [were] found.” Id. Upon review of the record, we find an abundance of evidence from which a reasonable jury could have found Defendant guilty beyond a reasonable doubt of possession with intent to distribute. Defendant stipulated at trial that the substance found in his bathroom cabinet was cocaine and that the residue on the scales was cocaine. Defendant lived in the apartment and occupied the bedroom where all of the paraphernalia was discovered. He admitted to Officer Benson that the drugs found in the bathroom and the paraphernalia found in the closet belonged to him, and further admitted" }, { "docid": "13492830", "title": "", "text": "to distribute in violation of 21 U.S.C. § 841(a)(1), the government had to present evidence sufficient to show beyond a reasonable doubt that Jones knowingly and intentionally possessed a controlled substance with intent to distribute it to another person. United States v. Campbell, 534 F.3d 599, 605 (7th Cir.2008). The government’s theory is that Jones possessed the cocaine inside the South Christiana residence, where the government believes he cooked powder cocaine into the crack that Finley took with him in the car. (The government did not try to prove that Jones had joint possession of the cocaine when he was in the car with Finley.) To prove the use of a communication facility in causing and facilitating possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 843(b), the government had to prove beyond a reasonable doubt that (1) either Jones or Finley committed the underlying possession offense, and (2) Jones knowingly and intentionally used a telephone to facilitate that possession. United States v. McGee, 408 F.3d 966, 985 (7th Cir.2005) (explaining that “the government must prove the commission of the underlying offense to obtain a conviction on a charge of telephone facilitation”) (citation omitted); United States v. Mueller, 112 F.3d 277, 281-82 (7th Cir.1997) (“[A] defendant cannot be convicted of using a telephone to facilitate a drug offense unless the defendant also aids or abets, or attempts to commit, the drug offense itself.”). The government relies on the first intercepted call between Finley and Jones on June 17, when Finley said he needed Jones to “do that what you done for Sonny for me.” The government was not required to prove its case with direct evidence, of course, such as a witness who saw Jones cooking crack cocaine or handing a package to Finley. The question is whether the circumstantial evidence allows a reasonable conclusion, beyond a reasonable doubt, that Jones possessed cocaine with intent to distribute it and/or used a telephone to commit the unlawful possession or to help Finley do so. B. The Inferential Chain We start with the common ground. Based" }, { "docid": "22841393", "title": "", "text": "F.2d 1526, 1532 (10th Cir.1986). Thus, we must affirm the convictions if the “collective inferences” from the totality of that evidence could have led a reasonable jury to find beyond a reasonable doubt that Mr. Wilson possessed the requisite knowledge and intent for the underlying crimes. United States v. Johnson, 57 F.3d 968, 971 (10th Cir.1995). We address Mr. Wilson’s arguments in turn. 1. Possession with intent to distribute cocaine To obtain a conviction for possession of cocaine with intent to distribute under 21 U.S.C. § 841(a)(1), the government had to prove that Mr. Wilson (1) possessed a controlled substance; (2) knew he possessed a ■controlled substance; and (3) intended to distribute the controlled substance. Mains, 33 F.3d at 1228. Mr. Wilson contends the evidence was insufficient to support his conviction under § 841(a)(1). Specifically, he argues that there was insufficient evidence to connect him with the house and the cocaine found in the yard. He also argues that there was insufficient evidence to establish his alleged intent to distribute the 3.74 grams of cocaine base. In reviewing the evidence in the light most favorable to the government, we find that the combination of the various pieces of evidence provides sufficient grounds for a reasonable jury to conclude that Mr. Wilson possessed the cocaine base found in the yard. The possession of a controlled substance may be either actual or constructive. Constructive possession occurs when a person “knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics are found.” United States v. Hager, 969 F.2d 883, 888 (10th Cir.1992). While constructive possession may be demonstrated through circumstantial evidence, the government must show “a sufficient nexus between the defendant and the narcotics.” Id. The circumstantial evidence found in the home suggests that Mr. Wilson exercised sole dominion and control over the premises and can be used to infer that he possessed the cocaine found in the Dial soap box in the yard. Even though there is no direct evidence that Mr. Wilson owned or rented the house at 2026 North Green, the circumstantial evidence demonstrates that" } ]

[ { "docid": "22386757", "title": "", "text": "516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). In the context of medical care, a prison official violates the Eighth Amendment when he acts with deliberate indifference to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976). Also, “a serious medical need may exist for psychological or psychiatric treatment, just as it may for physical ills.” Partridge v. Two Unknown Police Officers of the City of Houston, 791 F.2d 1182, 1187 (5th Cir.1986). Reddy argues that even when the disputed facts are viewed in Domino’s favor, Reddy was not deliberately indifferent to Domino’s serious medical needs and therefore did not violate Domino’s constitutional rights. We agree with Reddy that this court has jurisdiction over this appeal to decide that legal issue when the disputed facts are viewed in Domino’s favor. III. Reddy first raises several challenges to the admissibility of evidence used by the magistrate in deciding Reddy’s summary judgment motion. We need not rule on these challenges, because we hold that even when this disputed evidence is admitted against Reddy, and the disputed facts are viewed in favor of Ms. Domino, that Reddy did not act with deliberate indifference to Domino’s serious medical needs. This court has stated that the test for qualified immunity “is quite familiar: (1) whether the plaintiff has alleged a violation of a clearly established constitutional right; and (2) if so, whether the defendant’s conduct was objectively unreasonable in the light of the clearly established law at the time of the incident.” Hare v. City of Corinth, Miss., 135 F.3d 320 (5th Cir.1998)(en banc). As discussed above, the first part of the qualified immunity test — whether Domino has alleged a violation of a clearly established constitutional right — depends on whether the summary judgment evidence, viewed in a light favorable to Ms. Domino, demonstrates that Reddy was deliberately indifferent to Domino’s serious medical needs. The Supreme Court has stated that: We reject petitioner’s invitation to adopt an objective test for deliberate indifference. We hold instead that a prison official cannot be" } ]

[ { "docid": "1362270", "title": "", "text": "turn to the operative law. III. EIGHTH AMENDMENT CRITERION The Eighth Amendment provides the vehicle through which courts scrutinize “the treatment a prisoner receives in prison and the conditions under which he is confined.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks omitted). One way prison officials violate the Eighth Amendment is when they fail to provide an inmate with adequate medical care, such that “their ‘acts or omissions [are] sufficiently harmful to evidence deliberate indifference to serious medical needs.’ ” Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir.2011) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). To prevail on an Eighth Amendment inadequate medical care claim, a plaintiff must satisfy two inquiries, one objective and one subjective. Id. The objective component requires that “the deprivation alleged must be, objectively, sufficiently serious.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (internal quotation marks omitted); Leavitt, 645 F.3d at 497. Thus an Eighth Amendment claim such as this one turns, in part, on whether the prisoner has a “serious medical need,” in other words, “one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Mahan v. Plymouth Cnty. House of Corr., 64 F.3d 14, 18 (1st Cir.1995) (internal quotation marks omitted). A prisoner is entitled to adequate medical care for that need, though this does not necessarily mean the most sophisticated care available. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.1987). Rather, adequate care is “services at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards.” Id. at 43. For the subjective prong to be satisfied, prison officials must have had “a sufficiently culpable state of mind”; that is, they showed deliberate indifference to an inmate’s health and safety. Farmer, 511 U.S. at 834, 114 S.Ct. 1970; Leavitt, 645 F.3d at 497. “Deliberate indifference means that a prison official subjectively" }, { "docid": "22969755", "title": "", "text": "testimony, must be based on more than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.2004). “Unsubstantiated allegations carry no probative weight in summary judgment proceedings.” Phillips v. Calhoun, 956 F.2d 949, 951 n. 3 (10th Cir.1992); accord Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir.2004) (noting that “unsupported conclusory allegations ... do not create a genuine issue of fact”) (internal citation and quotation marks omitted). III. Discussion A. Legal Framework The Supreme Court first recognized claims for deliberate indifference to a prisoner’s medical needs in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Court held that prison officials violate the Eighth Amendment’s ban on cruel and unusual punishment if their “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.” Id. at 104, 97 S.Ct. 285 (internal citation and quotation marks omitted). To prevail on a claim under 42 U.S.C. § 1983, however, “inadvertent failure to provide adequate medical care” is not enough, nor does “a complaint that a physician has been negligent in diagnosing or treating a medical condition ... state a valid claim of medical mistreatment under the Eighth Amendment.” Id. at 105, 106, 97 S.Ct. 285. Rather, “a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106, 97 S.Ct. 285. The Supreme Court clarified the standards applicable to deliberate indifference claims in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In Farmer, the Court set forth a two-pronged inquiry, comprised of an objective and subjective component. Under the objective inquiry, the alleged deprivation must be “sufficiently serious” to constitute a deprivation of constitutional dimension. Id. at 834, 114 S.Ct. 1970. In addition, under the subjective inquiry, the prison official must have a “sufficiently culpable state of mind.” Id. In describing the subjective component, the Court made clear a prison official cannot be liable “unless the official knows of and disregards an excessive risk to inmate health or safety; the" }, { "docid": "6491455", "title": "", "text": "personally responsible for the incidents giving rise to his excessive force allegations. 2. Inadequate Medical Care. In order to prevail on his Eighth Amendment claim for the defendants’ alleged failure to provide him medical care, the plaintiff must prove that: (1) his medical need is serious; and (2) the defendant prison officials acted with deliberate indifference to his serious medical need. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). The plaintiff can prove deliberate indifference by showing that despite knowledge of an excessive risk to an inmate’s health and safety, a defendant prison official denied the inmate access to medical personnel or prevented an inmate from receiving recommended treatment. See Cox v. District of Columbia, 834 F.Supp. 439, 442 (D.D.C.1992). The defendant must have actual knowledge of the seriousness of the need. See Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 1981-82, 128 L.Ed.2d 811 (1994) (holding that the test for deliberate indifference is not what reasonable prison official would know under circumstances; rather, the test is what the defendant official knew and what he or she did or failed to do in light of this knowledge). The plaintiff fails to allege facts sufficient to show that Defendants Moore and Plaut acted with deliberate indifference to his medical need. Specifically, the plaintiff fails to allege that the defendants even knew of his injuries. Without actual knowledge, the defendants could not have deliberately sought to withhold care for a serious medical need or ignored his requests for medical care. See Farmer, 511 U.S. at 837-42, 114 S.Ct. at 1978-79 (holding that prison official cannot be held hable for deliberate indifference under Eighth Amendment unless the official knows of and disregards the risk). Consequently, the Court will grant the defendants’ Motion to Dismiss the plaintiff’s claim of inadequate medical care for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). 3. Plaintiff’s Conditions of Confinement. To prevail on his claim that his conditions of confinement violated the Eighth Amendment, the plaintiff must prove that: (1) he was incarcerated under" }, { "docid": "23018495", "title": "", "text": "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment and that such indifference may give rise to a claim under section 1983. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A deliberate indifference claim contains both objective and subjective elements. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir.1997). The deprivation suffered by the prisoner must be objectively sufficiently serious; that is, it must result in the denial of the minimal civilized measure of life’s .necessities. Gutierrez, 111 F.3d at 1369 (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). “In the medical care context, the objective element requires that the inmate’s medical need be sufficiently serious.” Gutierrez, 111 F.3d at 1369. The subjective element requires that the prison official acted with a sufficiently culpable state of mind. Id. A negligent or inadvertent failure to provide adequate medical care is insufficient to state a section 1983 claim because such a failure is not an “unnecessary and wanton infliction of pain,” and is not “repugnant to the conscience of mankind.” Estelle, 429 U.S. at 105-06, 97 S.Ct. 285. “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. However, the standard for deliberate indifference is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Haley v. Gross, 86 F.3d 630, 641 (7th Cir.1996). “[A] prisoner claiming deliberate indifference need not prove that the prison officials intended, hoped for, or desired the harm that transpired.” Haley, 86 F.3d at 641. It is enough to show that the defendants actually knew of a substantial risk of harm to the inmate and acted or failed to act in disregard of that risk. Id. “[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Walker" }, { "docid": "18626198", "title": "", "text": "v. Hernandez, — U.S. -, -, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). This Court reviews the dismissal for abuse of discretion. Id., — U.S. at -, 112 S.Ct. at 1734. Reeves does not argue that Collins is liable as a defendant. Therefore, to the extent that supervisory liability was an issue in this case, it has been abandoned on appeal. See Bason v. Thaler, 14 F.3d 8, 9 n. 1 (5th Cir.1994). Reeves argues that in his facts, he has alleged deliberate indifference on the part of the three defendants, Spiers, Stewart, and Murry. “[DJeliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amend-ment_whether the indifference is manifested by prison doctors or by prison guards in intentionally denying or delaying access to medical care....” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (citation and footnotes omitted). The Supreme Court recently adopted “subjective recklessness as used in the criminal law” as the appropriate definition of “ ‘deliberate indifference’ under the Eighth Amendment.” Farmer v. Brennan, — U.S. -, -, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994). [A] prison official cannot be found liable under the Eighth Amendment ... unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at -, 114 S.Ct. at 1979. Under exceptional circumstances, a prison official’s knowledge of a substantial risk of harm may be inferred by the obviousness of the substantial risk. See id., at - and n. 8, 114 S.Ct. at 1981-82 and n. 8. Under the facts alleged by Reeves, in either version, this standard is not met. Even if the officers had checked to see if medical restrictions had been placed on Reeves for his back, Reeves agreed that the records did not state such restrictions, whether by inadvertence or intention of the medical care providers." }, { "docid": "22801560", "title": "", "text": "constitutional violation for purposes of a § 1983 claim when that conduct amounts to deliberate indifference to [the prisoner’s] serious medical needs, constituting] the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.1999) (internal quotation marks omitted) (alterations in original) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Under the “deliberate indifference” standard, a prison official, is not liable for the denial of medical treatment “unless the official knows of and disregards an excessive risk to inmate health or safety”. Stewart, 174 F.3d at 534 (citing Estelle, 429 U.S. at 104, 97 S.Ct. 285). While malpractice and negligent treatment do not rise to the level of a constitutional tort, see Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993), a claim of “unnecessary and wanton infliction of pain repugnant to the conscience of mankind,” can state a claim of a constitutional tort. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997) (citing Estelle, 429 U.S. at 105-106, 97 S.Ct. 285). In Estelle, the Supreme Court concluded: [Djeliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. Estelle, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (citation omitted, footnotes omitted). To state an Eighth Amendment claim, a plaintiff must allege a deprivation of medical care sufficiently serious to show that “the state has abdicated a constitutionally-required responsibility to attend to his medical needs,” Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir.1983), and that a prison official knew of and disregarded “an excessive risk to inmate health or safety.” Stewart v. Murphy, 174 F.3d 530, 533 (5th" }, { "docid": "5016164", "title": "", "text": "was abridged. Accordingly, the plaintiff is unable to meet the stringent standard set forth in Sandin. b. The cruel and unusual punishment claim The gravamen of Mandala’s claims is that he was denied adequate medical care in violation of the Eighth Amendment which prohibits cruel and unusual punishment. The Eighth Amendment requires that prison officials provide “humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, — U.S. -, -, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994), quoting, Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200-01, 82 L.Ed.2d 393 (1984). In the seminal case of Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), the Supreme Court recognized the standard for Eighth Amendment claims based on a failure to provide medical care, requiring that the plaintiff demonstrate a “deliberate indifference to serious, medical needs.” The Court elaborated on this standard, stating, that deliberate indifference to serious medical needs constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their presence to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Id. at 104-05, 97 S.Ct. at 291-92 (internal quotations and citations omitted). The Estelle Court recognized however that “every claim by a prisoner that he has not received adequate medical treatment [does not] state[] a violation of the Eighth Amendment.” Id. at 105, 97 S.Ct. at 291. [I]n the medical context, ... a complaint that physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege that acts or omissions sufficiently harmful to evidence deliberate indifference to serious" }, { "docid": "4099212", "title": "", "text": "adequate medical treatment was violated by Dr. Organ. A plaintiff may state an Eighth Amendment claim when he alleges that prison officials denied, delayed, or interfered with necessary medical treatment with deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment claim.... Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are serious. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quotations and citations omitted). Additionally, it is only that conduct which is incompatible with “the evolving standards of decency that mark the progress of a maturing society,” Estelle, 429 U.S. at 102, 97 S.Ct. 285, or constitute the “unnecessary and wanton infliction of pain,” id. at 104, 97 S.Ct. 285, that rises to the level of deliberate indifference toward an inmate’s serious medical needs. There is a two-pronged test that a plaintiff must satisfy to state a cognizable claim under the Eighth Amendment. The test contains both an objective and a subjective component. First, as to the objective prong, the medical condition for which the plaintiff alleges he was denied treatment must be “sufficiently serious” to raise Eighth Amendment concerns. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). Ordinarily, a health condition is sufficiently serious to state a claim when it involves some urgency, risk of degeneration or death, or extreme pain. See id. Moreover, as noted above, a “sufficiently serious” deprivation occurs when a “prison official’s acts or omission ... results] in the denial of ‘the minimal civilized measure’ of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Second, as to the subjective prong, the plaintiff must allege that the charged official acted with a “sufficiently culpable state" }, { "docid": "23547407", "title": "", "text": "any penological purpose.” Id. Accordingly, “deliberate indifference to serious medical needs” of a prisoner constitutes the unnecessary and wanton infliction of pain forbidden by the Constitution. Id. at 104, 97 S.Ct. 285. This indifference includes intentionally denying or delaying access to medical care or intentionally interfering with prescribed treatment. Id. at 104-05, 97 S.Ct. 285. By contrast, mere negligence in the provision of medical care does not constitute a violation of the Amendment. Id. at 105, 97 S.Ct. 285. Rather, “a plaintiff must show (1) an objectively serious medical condition to which (2) a state official was deliberately, that is subjectively, indifferent.” Duckworth, v. Ahmad, 532 F.3d 675, 679 (7th Cir.2008) (citing Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir.2000)). In Gutierrez v. Peters, 111 F.3d 1364 (7th Cir.1997), we addressed the appropriate principles to be applied in cases involving delays in the treatment of painful medical conditions. In applying the standard articulated in Estelle — deliberate indifference to a serious medical need — we noted that it contained both objective and subjective elements. “The former requires that the deprivation suffered by the prisoner be ‘objectively, sufficiently serious.’” Gutierrez, 111 F.3d at 1369 (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks omitted)). The latter requires that the state official, or the person acting in his stead, act with deliberate indifference. Id. We also recognized that delays in treating painful medical conditions, even if not life-threatening, may support an Eighth Amendment claim. Id. at 1371; see also Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir.2002) (holding that a complaint alleging that a prison nurse refused to give pain medication prescribed by a physician stated a claim under the Eighth Amendment); Edwards v. Snyder, 478 F.3d 827, 830-32 (7th Cir.2007) (holding that a prisoner’s claim against a doctor survived dismissal under 28 U.S.C. § 1915A where the prisoner was forced to wait two days for proper treatment of his severely injured finger, leading to “permanent disfigurement, loss of range of motion, and the infliction of unnecessary pain”). By contrast, minor pains" }, { "docid": "23018494", "title": "", "text": "court therefore found Dr. Benjamin was entitled to a finding of qualified immunity. Because all of the remaining defendants were entitled to qualified immunity as a matter of law, the district court dismissed the case with prejudice. Walker appeals the district court’s grant of summary judgment in favor of Drs. Benjamin, Ansari and Feinerman, as well as Nurse Dunbar. He does not appeal the district court’s earlier grant of summary judgment in favor of Dr. Pilapil and Nurse Rowland. II. We review the district court’s grant of summary judgment on the grounds of qualified immunity de novo. Delgado-Brunet v. Clark, 93 F.3d 339, 342 (7th Cir.1996); Walker v. Shansky, 28 F.3d 666, 670 (7th Cir.1994). Walker complains that the defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth Amendment. In particular, he alleges that they were deliberately indifferent to his serious medical needs, and this indifference caused him great pain and permanent injury. The Supreme Court held in Estelle v. Gamble that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment and that such indifference may give rise to a claim under section 1983. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A deliberate indifference claim contains both objective and subjective elements. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir.1997). The deprivation suffered by the prisoner must be objectively sufficiently serious; that is, it must result in the denial of the minimal civilized measure of life’s .necessities. Gutierrez, 111 F.3d at 1369 (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). “In the medical care context, the objective element requires that the inmate’s medical need be sufficiently serious.” Gutierrez, 111 F.3d at 1369. The subjective element requires that the prison official acted with a sufficiently culpable state of mind. Id. A negligent or inadvertent failure to provide adequate medical care is insufficient to state a section 1983 claim because such a failure" }, { "docid": "22889729", "title": "", "text": "discretionary function). . Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir.1993). . Id. at 105, 108 (“When evaluating whether a plaintiff stated a constitutional violation, we look[] to currently applicable constitutional standards. However, '[t]he objective reasonableness of an official's conduct must be measured with reference to the law as it existed at the time of the conduct in question.’ ” (internal citations omitted)). . Id. at 105. . Salas v. Carpenter, 980 F.2d 299, 310 (5th Cir.1992) (\"Even if an official's conduct violates a constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable.”). . Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.1999). . Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). . Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). . Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993). . Farmer, 511 U.S. at 829, 114 S.Ct. 1970. . Id. at 837, 114 S.Ct. 1970. . Id. at 842-43, 114 S.Ct. 1970 (internal quotations omitted). . Id. . Salas v. Carpenter, 980 F.2d 299, 304 (5th Cir.1992) (\"Our review [of whether a valid constitutional claim has been made] is plenary accepting the facts in the light most favorable to the nonmoving party.”). . Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir.1999). . See Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (noting that deliberate indifference can be \"manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed”). . Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.2001). . See Austin v. Johnson, 328 F.3d 204, 210 (5th Cir.2003) (holding that a defendant's failure to call an ambulance for almost two hours while plaintiff lay unconscious and vomiting rises to the level of deliberate indifference); Harris v. Hegmann, 198 F.3d 153, 159-60 (5th" }, { "docid": "12157890", "title": "", "text": "rejected it as to Dr. Kayira, reasoning that his course of treatment did not rise to the level of objective indifference. This appeal followed. II. Discussion As he did below, Duckworth argues on appeal that both Drs. Ahmad and Kayira were deliberately indifferent to his gross hematuria. We review de novo the district court’s decision to grant the defendants summary judgment on these claims. And, because Duckworth lost below, we reasonably construe the facts in his favor. Greeno v. Daley, 414 F.3d 645, 648-49 (7th Cir.2005). The states have an affirmative duty to provide medical care to their inmates. Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). And the upshot of this duty is that the “deliberate indifference to [the] serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain”’ and violates the Eighth Amendment’s prohibition against cruel and unusual punishments. Id. at 104, 97 S.Ct. 285. To state a cause of action, a plaintiff must show (1) an objectively serious medical condition to which (2) a state official was deliberately, that is subjectively, indifferent. Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir.2000). Deliberate indifference is not medical malpractice; the Eighth Amendment does not codify common law torts. Id. And although deliberate means more than negligent, it is something less than purposeful. Farmer v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The point between these two poles lies where “the official knows of and disregards an excessive risk to inmate health or safety” or where “the official [is] both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he ... draw[s] the inference.” Id. at 837, 114 S.Ct. 1970. A jury can “infer deliberate indifference on the basis of a physician’s treatment decision [when] the decision [is] so far afield of accepted professional standards as to raise the inference that it was not actually based on a medical judgment.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir.2006). All the parties agree that gross hematu-ria" }, { "docid": "3151413", "title": "", "text": "Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Among other things, these principles prohibit jail guards from “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, liability results only when the defendant exhibits “deliberate indifference to serious medical needs.” Id. at 104, 97 S.Ct. 285; see also Henderson v. Sheahan, 196 F.3d 839, 844(7th Cir.1999). In Farmer, the Supreme Court explained that an inmate must satisfy a two-prong test to establish an Eighth Amendment claim: (1) the deprivation alleged must be objectively serious; (2) the prison official must have exhibited deliberate indifference to the inmate’s health or safety. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. Although the Eighth Amendment does not extend to pretrial detainees like Zentmyer, the Due Process Clause of the Fourteenth Amendment protects pretrial detainees under the same standard as the Eighth Amendment. See Henderson, 196 F.3d at 844 n. 2; Payne v. Churchich, 161 F.3d 1030, 1041 (7th Cir.1998). Zentmyer appeals summary judgment on his Fourteenth Amendment claim “as to the individual deputies in their individual capacities” and argues that the defendants’ failure to administer medication exactly as prescribed constituted deliberate indifference to serious medical needs. We review de novo the district court’s grant of summary judgment and draw all reasonable and justifiable inferences in favor of the non-moving party Zentmyer. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Reed v. McBride, 178 F.3d 849, 852 (7th Cir.1999). An objectively serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.1997) (citation and internal quotation omitted). Failure to “dispense bromides for the sniffles or minor aches and pains or a tiny scratch or a mild headache or minor fatigue — the sorts of ailments for" }, { "docid": "22420436", "title": "", "text": "U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). An Eighth Amendment claim arising out of inadequate medical care requires a demonstration of “deliberate indifference to [a prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The standard for deliberate indifference includes a subjective component and an objective component. See Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998) (per curiam). Subjectively, the official charged with deliberate indifference must act with a “sufficiently culpable state of mind.” See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). That is, the official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective component requires that “the alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (internal quotation marks omitted). Medical malpractice does not rise to the level of a constitutional violation unless the malpractice involves culpable recklessness—“an act or a failure to act by [a] prison doctor that evinces a conscious disregard of a substantial risk of serious harm.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) (internal quotation marks omitted). In this connection, the Supreme Court has held that “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. It has long been the rule that a prisoner does not have the right to choose his medical treatment as long as he receives adequate treatment. See id. at 106-07, 97 S.Ct. 285. It is well-established that mere disagreement over the proper treatment does" }, { "docid": "22801561", "title": "", "text": "97 S.Ct. 285). In Estelle, the Supreme Court concluded: [Djeliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. Estelle, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (citation omitted, footnotes omitted). To state an Eighth Amendment claim, a plaintiff must allege a deprivation of medical care sufficiently serious to show that “the state has abdicated a constitutionally-required responsibility to attend to his medical needs,” Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir.1983), and that a prison official knew of and disregarded “an excessive risk to inmate health or safety.” Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.1999) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)) “For an official to act with deliberate indifference, ‘the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’ ” Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir.1998) (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970). “Under exceptional circumstances, a prison official’s knowledge of a substantial risk of harm may be inferred by the obviousness of the substantial risk.” Reeves v. Collins, 27 F.3d 174, 176 (5th Cir.1994) (citing Farmer, 511 U.S. at 842 & n. 8, 114 S.Ct. 1970). In this case, Harris alleges that the repair of his broken jaw had failed before he even left the surgery clinic. He alleges that Dr. Hegmann and nurses Boyd and James ignored his urgent and repeated requests for immediate medical treatment for his broken jaw and his complaints of excruciating pain. Harris alleges facts demonstrating that all three" }, { "docid": "1062079", "title": "", "text": "complaint liberally, this court “must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff.” Id. (citation omitted). THE EIGHTH AMENDMENT A “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citation omitted). “This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.” Id. at 104-05, 97 S.Ct. 285. “ ‘Deliberate indifference’ involves both an objective and a subjective component.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.2000). The objective component is met if the deprivation is “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation omitted). “A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Sealock, 218 F.3d at 1209 (quotation omitted). “The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety.” Id. (quotation omitted). In measuring a prison official’s state of mind, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir.1996) (quotation omitted). THE DISTRICT COURT ORDER The district court concluded that the allegations in Mr. Martinez’s complaint were sufficient to establish an objectively serious deprivation. However, the court found that the allegations failed to meet the subjective test of deliberate" }, { "docid": "22439312", "title": "", "text": "medical needs, i.e., that treatment was prescribed at all or that prescribed treatment was provided. Prison officials violate the Eighth Amendment’s prohibition against cruel and unusual punishment when they act deliberately and indifferently to serious medical needs of prisoners in their custody. This is true whether the indifference is manifested by prison doctors responding to the prisoner’s needs or by guards’ intentionally delaying or denying access to medical care that has been prescribed. See Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference has both an objective and subjective component. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The medical need must be sufficiently serious to satisfy the objective component. See id. We have held that a medical need is sufficiently serious “if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980) (quotation omitted). In terms -of the subjective component, i.e., the requisite deliberate indifference, a plaintiff must establish that defendant(s) knew he faced a substantial risk of harm and disregarded that risk, “by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847, 114 S.Ct. 1970. The Eighth Amendment also protects against future harm to an inmate. See Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Under these standards, delay in providing medical care may constitute a violation of the Eighth Amendment. See, e.g., Thomas v. Town of Davie, 847 F.2d 771, 772-73 (11th Cir.1988) (concluding that an automobile accident victim stated an Eighth Amendment claim against police officers for delay in obtaining medical care when the victim obviously needed immediate medical attention and his condition was deteriorating). Delays that courts have found to violate the Eighth Amendment have frequently involved life-threatening situations and instances in which it is apparent that delay would exacerbate the prisoner’s medical problems. See Hill v. Dekalb Regional" }, { "docid": "3151412", "title": "", "text": "ear. Two years later, audiologist David Lewis performed another audiogram on Zent-myer and also found that Zentmyer reported no hearing in his right ear. However, suspicious of Zentmyer’s responses, Lewis conducted a second hearing test which “did not reveal that [Zentmyer’s hearing] is as bad as Mr. Zentmyer is claiming.” On April 22, 1997, Zentmyer sued the defendants in district court under 42 U.S.C. § 1983 claiming that he was denied adequate medical care in violation of his Eighth and Fourteenth Amendment rights. Zentmyer argued that as a result of the defendants’ deliberate indifference to administering his medication properly, the medication was rendered “useless” and he sustained a “totally dead” right ear. The district court immediately dismissed Zentmyer’s Eighth -Amendment claims, and on December 22, 1998, granted the defendants’ motion for summary judgment on Zentmyer’s Fourteenth Amendment claims. II. ANALYSIS The Eighth Amendment proscription on the infliction of cruel and unusual punishment requires that the government “provide humane conditions of confinement” and “ensure, that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Among other things, these principles prohibit jail guards from “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, liability results only when the defendant exhibits “deliberate indifference to serious medical needs.” Id. at 104, 97 S.Ct. 285; see also Henderson v. Sheahan, 196 F.3d 839, 844(7th Cir.1999). In Farmer, the Supreme Court explained that an inmate must satisfy a two-prong test to establish an Eighth Amendment claim: (1) the deprivation alleged must be objectively serious; (2) the prison official must have exhibited deliberate indifference to the inmate’s health or safety. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. Although the Eighth Amendment does not extend to pretrial detainees like Zentmyer, the Due Process Clause of the Fourteenth Amendment protects pretrial detainees under the same standard as the Eighth Amendment. See Henderson, 196 F.3d at 844 n. 2; Payne v. Churchich, 161" }, { "docid": "22856381", "title": "", "text": "811 (1994) (“cruel and unusual punishments” clause imposes duty on prison officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care”). Along this line, inadequate medical care by a prison doctor can result in a constitutional violation for purposes of a § 1988 claim when that conduct amounts to “deliberate indifference to [the prisoner’s] serious medical needs”, “consti-tut[ing] the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment”. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal citation omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 182-83, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Farmer, 511 U.S. at 837, 114 S.Ct. 1970, defined the “deliberate indifference” standard, explaining that a prison official is not liable “unless the official knows of and disregards an excessive risk to inmate health or safety”. Id. (emphasis added); see also Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.1998). Therefore, although inadequate medical treatment may, at a certain point, rise to the level of a constitutional violation, malpractice or negligent care does not. Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir.1993) (“It is clear that negligent medical treatment is not a cognizable basis upon which to predicate a section 1983 action”); Williams v. Treen, 671 F.2d 892, 901 (5th Cir.1982) (“mere negligence in giving or failing to supply medical treatment would not support an actioh under Section 1983”(emphasis added)); see also Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir.1989). “Deliberate indifference encompasses only the unnecessary and wanton infliction of pain repugnant to the conscience of mankind.” McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997); see also Bradley, 157 F.3d at 1025. The heart of Appellants’ claim is that the pattern of neglect by both the facility and the defendant physicians presents a material fact issue for whether the physicians’ conduct constitutes deliberate indifference. Specifically, Appellants assert that the doctors’ failure to properly treat Stewart’s decubitus ulcers, or to transfer him to another facility for intensive physical therapy and other treatment, met this standard. We conclude, however, that Appellants have failed to" }, { "docid": "17816294", "title": "", "text": "all evidentiary conflicts in favor of the prevailing party.. See id. The verdict should be overturned only where no reasonable juror could have found in favor of the prevailing party.. See id. The Eighth Amendment scrutinizes the conditions under which prison inmates are confined in order to prevent the inhumane treatment of inmates. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (Farmer ). The government is obligated “to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (Estelle). For this reason, the Eighth Amendment proscribes deliberate indifference to the serious medical needs of prisoners. See id. at 104, 97 S.Ct. 285 (citations omitted). Deliberate indifference to the serious medical needs of inmates may be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id. at 104-05, 97 S.Ct. 285. In order to find a prison official liable for a deliberate indifference claim, the inmate must prove that (1) a substantial risk of serious harm to the inmate existed and (2) the prison official knew of and disregarded that risk. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970. We may assume without elaboration that a stroke is a serious medical harm, the risk of which was substantial in plaintiffs case. Viewing the evidence in the light most favorable to the verdict as required by Van Steenburgh, 171 F.3d at 1158, a reasonable juror could infer that defendants knew of plaintiffs hypertension and that they ignored plaintiffs requests concerning his hypertension. However, a reasonable juror cannot infer from the evidence whether plaintiffs hypertension caused his stroke or, consequently, whether plaintiffs lapse in hypertension medication had anything to do with his stroke. Plaintiff did not offer any evidence that his lapse" } ]

[ { "docid": "22312129", "title": "", "text": "future cases. Further, since this case was decided on summary judgment our decision will not produce any injustice in future cases. Finally, we do not believe that the public's confidence in the judicial process will be undermined if we conclude that the § 455(a) violation was harmless error. Since we have determined that in fact a violation occurred and strongly urge Judge Lynne to discontinue his practice of crediting the work of his law clerks, we believe that our decision will instill greater confidence in our judiciary. To the extent that public confidence has already been undermined we do not believe that granting relief in this case will change the public’s perception in any appreciable way. Such harm cannot be remedied by vacating the district court’s decision and reassigning this case to a different judge. In fact, if we reverse and vacate a decision that we have already determined to be proper, the public will lose faith in our system of justice because the case will be overturned without regard to the merits of the employees’ claims. Judicial decisions based on such technical arguments not relevant to the merits contribute to the public’s distrust in our system of justice. The employees also argue that Judge Lynne was disqualified from presiding over this case under 28 U.S.C. § 455(b)(5)(iii) which would disqualify a judge whose father is a lawyer in the case. See, e.g., Potashnick, 609 F.2d at 1113 (“[Wjhen a partner in a law firm is related to a judge within the third degree, that partner will always be ‘known by the judge to have an interest that could be substantially affected by the outcome’ of a proceeding involving the partner’s law firm.”). The employees argue that since Somerville acted as the judge’s alter ego when he conducted the hearing in the judge’s absence, section 455(b)(5)(iii) requires Judge Lynne’s disqualification. We do not believe that we have to reach this question in the present case. If we assume that there was a violation of § 455(b) we believe that our discussion of the remedy for the § 455(a) violation would" } ]

[ { "docid": "23016585", "title": "", "text": "or (iii) the decision was clearly erroneous and would work a manifest injustice.” Free v. Abbott Laboratories, 164 F.3d 270, 272-73 (5th Cir.1999) (quoting North Mississippi Comms., Inc. v. Jones, 951 F.2d 652, 656 (5th Cir.1992)). See United States v. Becerra, 155 F.3d 740, 752-753 (5th Cir.1998). Applying these principles, it is evident that the defendants’ appeal and the government’s assertion of the law of the case bar raise substantial questions of law with respect to whether the O’Keefe I panel committed clear error that will work manifest injustice by (a) holding that a trial judge’s legal error in knowingly performing a discretionary judicial act in violation of his own order disqualifying himself under 28 U.S.C. § 455(a) can be “harmless error” that does not have to be vacated; and (b) failing to hold that both of the trial judge’s rulings, i.e., his grant of the defendant’s new trial motion and his denial of the government’s motion for reconsideration, were discretionary acts performed in violation of his disqualification order, that the rulings must be vacated, and that the case must be remanded for further proceedings before a different judge. (a) The trial judge disqualified himself in accordance with 28 U.S.C. § 455(a), which provides that “[a]ny justice, judge, or magistrate ' of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The O’Keefe I panel correctly held that “[ojnce a judge recuses himself from a case, the judge may take no action other than the ministerial acts necessary to transfer the case to another judge, even when recusal is improvidently decided.” O’Keefe I, 128 F.3d at 891 (citing “Doddy v. Oxy USA Inc., 101 F.3d 448, 457 (5th Cir.1996)(holding that judge erred in vacating recusal order after recusing herself); Moody v. Simmons, 858 F.2d 137, 143 (3rd Cir.1988)(stating that judge may only perform the ‘housekeeping’ duties necessary to transfer a case to another judge after recusing himself from a proceeding)”). There is a substantial question, however, whether O’Keefe I clearly erred in holding that a trial judge’s discretionary rulings in a criminal" }, { "docid": "22258635", "title": "", "text": "306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962) (stating that “[a] pragmatic approach to the question of finality has been considered essential to the achievement of the ‘just, speedy, and inexpensive determination of every action’ ” (quoting Fed.R.Civ.P. 1)). Accordingly, we hold that Chief Judge Sear’s ruling on the motion for reconsideration after recusal was harmless error and does not have to be vacated. The result of this conclusion is that with all of the challenges to our jurisdiction cleared away, we now proceed to a resolution of this appeal on the merits. Ill “[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.... The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). A Napue violation may occur not only when the prosecuting attorney knows that a witness’s testimony is false, but also when another government attorney knows of the false testimony and does nothing to correct it. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). False testimony for these purposes includes testimony that affects only the credibility of a witness. Napue, 360 U.S. at 269-270, 79 S.Ct. at 1177. Thus, the grant of a new trial based upon a Napue violation is proper only if (1) the statements in question are shown to be actually false; (2) the prosecution knew that they were false; and (3) the statements were material. United States v. Blackburn, 9 F.3d 353, 357 (5th Cir.1993). On appeal, the government argues that none of these three elements exists. We review an order granting new trial under an abuse of discretion standard. United States v. Pankhurst, 118 F.3d 345, 353 (5th Cir.1997). This standard is necessarily deferential to the trial court because we have only read the record, and have not seen the impact of witnesses on the jury or observed the demeanor" }, { "docid": "22258632", "title": "", "text": "the case doctrine. See Abshire, 668 F.2d at 837 (holding that a successor judge should generally treat an order in a case transferred by another judge with deference). Moreover, were we to vacate Chief Judge Sear’s order denying the motion for reconsideration, then the motion for reconsideration would still be pending, and we would have to remand for Judge Lemmon to rule on that motion. See Southland Indus. v. Federal Communications Comm’n, 99 F.2d 117 (D.C.Cir.1938) (holding that a decision is not final until an application for reconsideration has been decided). Although the need for an appeal to this court might well be obviated by Judge Lemmon’s decision, it is also possible that Judge Lemmon might deny the motion for reconsideration, which would then produce yet another appeal on the merits of the appeal now before us. Further, both the government and O’Keefe have fully discussed the merits of 'this case in their briefs, which, when considered together with the other facts we adduced above, leads us to conclude that neither party would be prejudiced by our deciding the merits of this appeal without remanding to Judge Lemmon for a ruling on the motion for reconsideration. Second, our decision today.’aids, rather than prejudices justice in other cases because it clarifies an unclear area of the law and serves as a caution to district court judges of the importance of taking no discretionary actions after recusal. It was not until 1984 that 18 U.S.C. § 3731 was amended to permit the government to appeal the interlocutory grant of a new trial. Pub.L. No. 98-473, § 1206, 98 Stat.1986 (1984) (codified at 18 U.S.C. § 3731). Liljeberg, which established the three-part harmless error standard for review of decisions made by a judge after recusal becomes appropriate, was not decided until 1988. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Moody, the first major case concluding that a judge could take no action after recusal other than to perform ministerial acts, was decided in the same year, and we only reached the same conclusion in" }, { "docid": "2449949", "title": "", "text": "the disciplinary proceedings, when it was not clear that the public defenders’ testimony had more weight than any other out-of-court criticisms or defenses of the judge. It is likely that the public will see the panel’s needless vacatur of the defendants’ sentences as a strike against the judicial process. Cf. O’Keefe, 128 F.3d at 893 (“decisions that are based on technicalities and do not reach the merits of the ease increase public distrust of the legal system”). Thus, under the three-prong harmless error analysis, these sentences should stand. Even in Jordan, a ease relied upon by my colleagues, the court weighed different remedies, ultimately refusing to reverse a conviction but vacating an “excessively harsh” sentence. United States v. Jordan, 49 F.3d 152, 158-59 (5th Cir.1995). In vacating the sentence, the Jordan court highlighted both its “apparent harshness” and the judge’s “unbridled sentencing discretion ... in [that] pre-Guidelines case.” Id. at 159. By contrast, Judge McBryde sentenced the defendants in these cases within the Guidelines, and, as discussed above, there can be no argument that his sentences were harsh. No abuse of the sentencing prerogative has been alleged by either defendant. III. The panel’s decisions in these cases needlessly pile on the prior actions of the Judicial Council of the Fifth Circuit, which has publicly reprimanded Judge McBryde and subjected him essentially to a temporary impeachment. Not only did the Council hold that the judge may be assigned no new cases for one year, but it also purported to require Judge McBryde, for three years after February 6, 1998, to recuse from all matters in his court involving attorneys who testified against him in the disciplinary proceeding (including the federal public defenders in these two cases). The propriety of the Council’s order is not an issue in these cases and should not be a basis for the majority’s decision. But whatever the order’s propriety, it is an entirely different matter to “sanction” Judge McBryde by enforced recusal after the disciplinary proceedings have been concluded, than it is to use that sanction as a basis for challenging his impartiality in decisions he" }, { "docid": "23016628", "title": "", "text": "on bail pending their own appeal. . The panel concluded that “harmless error\" existed because: (i) little risk of injustice would result from not vacating the denial of the motion for reconsideration and remanding the case to the successor judge, who had been assigned the case, for a decision on the government’s reconsideration motion; (ii) a decision on the merits of the trial judge’s granting of the defendants’ motion for new trial would serve justice in other cases because it would clarify an unclear area of the law and admonish district judges as to the importance of taking no discretionary actions after recusal; and (iii) there is little risk of undermining the public’s confidence in the judicial process. O’Keefe I, 128 F.3d at 892-93. . The O'Keefe I panel also found that two of the additional findings were inherently flawed: (i) the government's delay in disclosing the FBI 302 reports of investigative interviews of the two key prosecution witnesses, Donaldson and Moore, containing exculpatory evidence, did not violate Brady by impairing defendants' ability to cross-examine those witnesses, based on the panel’s review of the record and the absence of any affirmative finding (other than the conclusion) by the district judge to that effect, O’Keefe I, 128 F.3d at 898-99; and (ii) even if the prosecution attempted to mislead the defense by redrafting of the indictment, the defense had too much knowledge of the underlying facts to be misled. Id. at 895-96, 899. . Doddy v. Oxy USA, Inc., 101 F.3d 448 (5th Cir.1996), although problematic, is not inconsistent with the general rule. The trial judge, who owned Exxon stock, recused herself when informed that a corporate party had become affiliated with that company. Later the same day, she vacated the order of recusal and took evidence on the relationship of the two corporations. The evidence indicated that the two corporations had formed a joint venture but that neither Exxon nor the third entity venture could be affected by the litigation. The trial judge referred the question of recusal to the chief judge of the district, who determined that there was" }, { "docid": "16413311", "title": "", "text": "at trial. The Court is willing to trust the Defendants on these other points believing that such abuses will not occur in the future. The Court will rely upon the Plaintiffs to monitor administration of the WAC fund and seek a broader injunction if subsequent events prove this is necessary. Y. FINALITY The Defendants argue that the Court cannot render a final decision in this ease. See Stillman v. Travelers, 88 F.3d 911 (11th Cir. 1996) (decision not final where court did not rule on affirmative defenses); In Re Lull Corp., 52 F.3d 787 (8th Cir.1995) (decision leaving open set-off is not final); City of New York v. Exxon, 932 F.2d 1020 (2nd Cir.1991) (decision granting summary judgment not final where affirmative defense and damages were yet to be considered). The Court disagrees. Although most final decisions leave nothing for the Court to do except execute on a judgment, the Supreme Court has reiterated that “[a] question remaining to be decided after an order ending litigation on the merits does not prevent finality if its resolution will not alter the order or moot or revise decisions embodied in the order.” Budinich v. Becton Dickinson and Company, 486 U.S. 196, 199, 108 S.Ct. 1717, 1720, 100 L.Ed.2d 178 (1988). In that case, the Court held that an outstanding fee petition did not render a decision interlocutory employing a “practical approach to the matter” and reasoning that such a result did not undermine the interests that § 1291 was designed to protect — noninterference with ongoing proceedings, allowing trial judge’s an opportunity to reconsider their positions, the avoidance of piecemeal litigation. Budinich, 486 U.S. at 198-200, 202-03,108 S.Ct. at 1720,1722. In Budinich, supra, the Court relied on Brown Shoe Co. v. U.S., 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), where the Supreme Court, after emphasizing that “[a] pragmatic approach to the question of finality has been considered essential to the achievement of the ‘just, speedy, and inexpensive determination of every action’”, id. at 306, 82 S.Ct. at 1513, held that a district court decision holding a merger violative of" }, { "docid": "22917868", "title": "", "text": "does so explicitly. First, it states that the judgment of the district court with respect to all claims is final. Second, it explicitly denies appellant’s request for an entry of judgment, and thereby clearly notified McCalden that no further judgment would issue. Once this order was entered, McCalden knew the district court case was over; he had absolute ly no reason to delay filing his appeal. His only possible uncertainty was that he might already be too late. Although the July 30 order does not expressly direct entry of judgment on the dismissed claims, it explains that this has already happened. To find this insufficient, indeed, does inappropriately “ele-vat[e] ... form over substance.” Hamilton v. Nakai, 453 F.2d 152, 155 (9th Cir.1971); see also United States v. Perez, 736 F.2d 236, 238 (5th Cir.1984) (per curiam) (“We are not required to ‘mindlessly’ apply Rule 58”); Weinberger v. United States, 559 F.2d 401, 402 (5th Cir.1977) (same). In the Supreme Court’s words, “[a] pragmatic approach to the question of finality has been considered essential to the achievement of the ‘just, speedy, and inexpensive determination of every action ...,’” Brown Shoe Co. v. United States, 370 U.S. 294, 306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962). McCalden knew his July 30, 1987 case was over and that the order was the final piece of paper the district court would enter. He should have filed his notice of appeal not later than August 30,1987. Yet he waited until February of 1988. We should dismiss the appeal for lack of jurisdiction. . The July 30, 1987 Order stated, in relevant part: “By this order [the March 24, 1987 order dismissing McCalden’s fourth claim], the court dismissed with prejudice all of plaintiffs actions against all of the defendants, except for the City of Los Angeles. Although the above orders dismissing the action with prejudice as to certain claims and certain defendants may not be deemed final without certification pursuant to Rule 54(b), an order of dismissal may be treated as final if the remaining claims have been finalized by subsequent developments.... Here, subsequent to" }, { "docid": "22258630", "title": "", "text": "court unless the prior decision was erroneous, is no longer sound, or would create injustice). Thus, even though Judge Lemmon did not consider the new trial motion initially, Judge Lemmon would have been able to consider the motion for reconsideration and, as such, Chief Judge Sear erred when he ruled on the motion for reconsideration. C The “harmless error” standard is used to determine whether orders that a judge issues after the judge has, or should have, recused himself must be vacated. See Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 862, 108 S.Ct. 2194, 2203, 100 L.Ed.2d 856 (1988); Doddy, 101 F.3d at 458; El Fenix de Puerto Rico v. The M/Y JOHANNY, 36 F.3d 136, 142 (1st Cir.1994) (concluding that “the need for finality and a common-sense aversion to frittering away scarce judicial resources militate against an inflexible rule invalidating all prior actions of a judge disqualified under § 455(a)”). Under the “harmless error” test, we examine: (1) the risk of injustice to the parties in this particular case, (2) the risk that denial of relief will produce injustice in other cases, and (3) the risk of undermining the public's confidence in the judicial process. See Liljeberg, 486 U.S. at 864, 108 S.Ct. at 2205; Doddy, 101 F.3d at 458. As we explain below, we conclude that it is unnecessary to vacate Chief Judge Sear’s ruling and remand for Judge Lemmon to rule on the motion for reconsideration because Chief Judge Sear’s ruling on the motion for reconsideration was harmless error. Applying the three-part harmless error test, we first note that little risk of injustice to the parties will result from not vacating the denial of the motion for reconsideration and remanding for reconsideration by Judge Lemmon. The record is sufficient for us to review the order granting new trial. Our review of the order granting a new trial and the denial of the motion for reconsideration under an abuse of discretion standard, United States v. Pankhurst, 118 F.3d 345, 353 (5th Cir.1997), is only slightly more deferential than a district court’s review under the law of" }, { "docid": "23016586", "title": "", "text": "and that the case must be remanded for further proceedings before a different judge. (a) The trial judge disqualified himself in accordance with 28 U.S.C. § 455(a), which provides that “[a]ny justice, judge, or magistrate ' of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The O’Keefe I panel correctly held that “[ojnce a judge recuses himself from a case, the judge may take no action other than the ministerial acts necessary to transfer the case to another judge, even when recusal is improvidently decided.” O’Keefe I, 128 F.3d at 891 (citing “Doddy v. Oxy USA Inc., 101 F.3d 448, 457 (5th Cir.1996)(holding that judge erred in vacating recusal order after recusing herself); Moody v. Simmons, 858 F.2d 137, 143 (3rd Cir.1988)(stating that judge may only perform the ‘housekeeping’ duties necessary to transfer a case to another judge after recusing himself from a proceeding)”). There is a substantial question, however, whether O’Keefe I clearly erred in holding that a trial judge’s discretionary rulings in a criminal case in violation of his own order of disqualification can be harmless and may not require his infringing orders to be vacated. Before O’Keefe I, this court and other federal courts of appeals had held consistently in both civil and criminal cases that such an error requires the appellate court to vacate the offending discretionary order and to remand the case for reassignment to a different judge. See, e.g., Moody v. Simmons, 858 F.2d 137,143 (3d Cir.1988)(“Once a judge has disqualified himself, he or she may enter no further orders in the case. His power is limited to performing ministerial duties. * * * A judge who was obliged to recuse acts outside his jurisdiction [or] commits a clear error of law.... Mandamus is thus the proper remedy to vacate the orders of a judge who acted when he should have recused.”); Stringer v. United States, 233 F.2d 947, 948 (9th Cir.1956)(“[O]nce having disqualified himself for cause, on his own motion, it was incurable error for the district judge to resume full control and try" }, { "docid": "23688208", "title": "", "text": "matter to the Clerk for random assignment. Even if there were technical error in this regard, such error would not warrant the extraordinary remedy of mandamus. In Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988), the Supreme Court set forth factors to guide a court in deciding whether to vacate orders entered by a judge who continued to act after recusal was required: \"the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process.\" See also Parker v. Connors Steel Co., 855 F.2d 1510, 1526 (11th Cir.1988) (extending Liljeberg analysis to mandatory recusal under Section 455(b)). It is widely accepted that, even after the grounds for recusal emerge, the disqualified judge still may enter \"housekeeping” orders that do not involve the exercise of judicial discretion. See In re Aetna Cas. & Surety Co., 919 F.2d 1136, 1145-46 (6th Cir.1990) (en banc) (applying Liljeberg, disqualified judge’s orders on substantive motions affecting outcome of case must be vacated, but \"ministerial” order reassigning case to another judge remains valid \"because even a judge who has recused himself ought to be permitted to perform the duties necessary to transfer the case to another judge”); see also United States v. O’Keefe, 128 F.3d 885, 892 (5th Cir.1997) (dicta to the effect that once a judge recuses from a case, the judge may take no action other than ministerial acts; and holding, applying Liljeberg, that district court’s decision, after announcing recusal, to deny reconsideration of defendant’s motion for new trial was harmless error and did not require reversal absent evidence of injustice to parties); Pashaian v. Eccelston Properties, Inc., 88 F.3d 77, 84-85 (2nd Cir.1996) (rejecting argument that, once judge found grounds for discretionary recusal under § 455(a), withdrawal had to be \"total and immediate,” and, under the unusual circumstances there, approving his disposition of imminently pending preliminary injunction motion before relinquishing case); cf. Moody, 858 F.2d at 138 (observing that" }, { "docid": "22258626", "title": "", "text": "merits of this appeai, which would imply that O’Keefe was both on notice that the government intended to appeal the order granting new trial and that he was not prejudiced as a result of the misstatement in the government’s notice of appeal. See, e.g., Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962); Kruso v. International Tel. & Tel., 872 F.2d 1416, 1423 (9th Cir.1989). The order granting new trial and the motion for its reconsideration are also inextricably linked because we cannot analyze whether the district court abused its discretion in denying the motion for reconsideration without considering the merits of the order granting new trial. Thus, as the government’s intent to appeal the order granting new trial can be fairly inferred from its noticing the district court’s denial of reconsideration of that order, and as O’Keefe was not prejudiced by the misstatement, the mistake in the notice of appeal does not bar our exercising jurisdiction in this case. B The government argues that Judge Sear erred in failing to enforce his recusal and in denying the motion for reconsideration. O’Keefe argues that Chief Judge Sear properly refused to enforce the recusal because, quite simply, Judge Lemmon could not reconsider what Judge Lemmon had not considered in the first place. Once a judge recuses himself from a case, the judge may take no action other than the ministerial acts necessary to transfer the case to another judge, even when recusal is improvidently decided. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 457 (5th Cir.1996) (holding that judge erred in vacating recusal order after recusing herself); Moody v. Simmons, 858 F.2d 137, 143 (3rd Cir.1988) (stating that judge may only perform the “housekeeping” duties necessary to transfer a case to another judge after recusing himself from a proceeding). A ministerial act is usually defined as an act that is essentially clerical and does not involve the exercise of discretion or judgment. See United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420, 51 S.Ct. 502, 504, 75 L.Ed. 1148 (1931) (describing a" }, { "docid": "22258634", "title": "", "text": "December of 1996, after Chief Judge Sear had denied the reconsideration motion in this case. Doddy v. Oxy, USA, Inc., 101 F.3d 448 (5th Cir.1996); Moody v. Simmons, 858 F.2d 137 (3rd Cir.1988). Thus, our decision today aids justice in other cases by alerting judges to the importance of taking no further discretionary actions after recusal. Finally, there is little risk of undermining the public's confidence in the judicial process. While in some eases vacation of orders issued by a judge will restore public confidence in the legal system, see United States v. Jordan, 49 F.3d 152 (5th Cir.1995), other courts have held that decisions that are based on technicalities and do not reach the merits, of the ease increase public distrust of the legal system. See Parker v. Connors Steel Co., 855 F.2d 1510, 1527 (11th Cir.1988). A pragmatic approach should be taken to the notion of harmless error so that when in doubt, a court can reach the merits of an appeal. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962) (stating that “[a] pragmatic approach to the question of finality has been considered essential to the achievement of the ‘just, speedy, and inexpensive determination of every action’ ” (quoting Fed.R.Civ.P. 1)). Accordingly, we hold that Chief Judge Sear’s ruling on the motion for reconsideration after recusal was harmless error and does not have to be vacated. The result of this conclusion is that with all of the challenges to our jurisdiction cleared away, we now proceed to a resolution of this appeal on the merits. Ill “[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.... The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). A Napue violation may occur not only when the prosecuting attorney knows that a witness’s testimony is false," }, { "docid": "22258629", "title": "", "text": "method for resolution of this situation is appeal to a higher court. This argument ignores the many instances in which one district court judge must reconsider an order previously granted by another judge because of the first judge’s death, illness, or disqualification. See TCF Film Corp. v. Gourley, 240 F.2d 711, 714 (3rd Cir.1957). It also overlooks the law of the ease doctrine, which encompasses situations in which one judge has rendered an order or judgment and the case is then transferred to another judge. See Abshire v. Seacoast Products, 668 F.2d 832, 838 (5th Cir.1982). Under the law of the case doctrine and general principles of comity, a successor judge has the same discretion to reconsider an order as would the first judge, but should not overrule the earlier judge’s order or judgment merely because the later judge might have decided matters differently. See Loumar, Inc. v. Smith, 698 F.2d 759, 762-63 (5th Cir.1983) (stating that under the law of the case doctrine, a second court should follow a ruling made by an earlier court unless the prior decision was erroneous, is no longer sound, or would create injustice). Thus, even though Judge Lemmon did not consider the new trial motion initially, Judge Lemmon would have been able to consider the motion for reconsideration and, as such, Chief Judge Sear erred when he ruled on the motion for reconsideration. C The “harmless error” standard is used to determine whether orders that a judge issues after the judge has, or should have, recused himself must be vacated. See Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 862, 108 S.Ct. 2194, 2203, 100 L.Ed.2d 856 (1988); Doddy, 101 F.3d at 458; El Fenix de Puerto Rico v. The M/Y JOHANNY, 36 F.3d 136, 142 (1st Cir.1994) (concluding that “the need for finality and a common-sense aversion to frittering away scarce judicial resources militate against an inflexible rule invalidating all prior actions of a judge disqualified under § 455(a)”). Under the “harmless error” test, we examine: (1) the risk of injustice to the parties in this particular case, (2) the risk" }, { "docid": "4083711", "title": "", "text": "whether, even in making an incorrect decision, the Judge “abused his discretion.” . This problem of “finality” is not to be tested by the vague possibility that some relief might just possibly be available through a petition for mandamus or prohibition. The availability of that remedy is uncertain. More so, the nature of the review in that device is markedly different since it subjects the appellate court to the rigid peremptory standard of “abuse of discretion” in contrast to the broader review by appeal where our function is to determine whether the District Court’s decision is right on its intrinsic merits. We have recognized this many times in declining mandamus and permitting resubmission to the trial Court for possible certification and subsequent acceptance by us as an interlocutory appeal under 28 U.S.C.A. § 1292(b). Ex Parte Tokio Marino & Fire Ins. Co., 5 Cir., 1963, 322 F.2d 113, 115; Borskey v. American Pad & Textile Co., 5 Cir., 1961, 296 F.2d 894; In re Humble Oil & Refining Co., 5 Cir., 1962, 306 F.2d 567; Hadjipateras v. Pacifica, S.A., 5 Cir., 1961, 290 F.2d 697. . “The Court has adopted essentially practical tests for identifying those judgments which are, and those which are not, to be considered ‘final.’ * * * A pragmatic approach to the question of finality has been considered essential to the achievement of the ‘just, speedy, and inexpensive determination of every action’: the touchstones of federal procedure.” Brown Shoe Co. v. United States, 1962, 370 U.S. 294, 306, 82 S.Ct. 1502, 1513, 8 L.Ed. 510, 524-25. ON PETITION FOR REHEARING EN BANC. The appellants’ petition for rehearing en banc is hereby denied. JOHN R. BROWN, Circuit Judge (dissenting) : To the cases previously cited in my dissent must now be added Gillespie v. United States Steel Corporation, 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199." }, { "docid": "2449948", "title": "", "text": "years. Furthermore, assuming, as the majority does, that there is a § 455(a) violation here, district judges will not fail in the future to recuse themselves from cases involving attorneys who testify against them in judicial disciplinary proceedings. Cf. O’Keefe, 128 F.3d at 893 (“our decision aids ... justice in other cases because it clarifies an unclear area of the law and serves as a caution to district court judges”); O’Neill v. Continental Airlines, Inc. (In re Continental Airlines), 981 F.2d 1450, 1463 (5th Cir.1993); Air Line Pilots, 901 F.2d at 1263 (“rather, our ruling here should serve as a caution to other judges [in the same situation]”). Finally, there is little risk that public confidence in the judicial process would be undermined by allowing the defendants’ sentences to stand. The Judicial Council’s much publicized order should reassure the public that Judge McBryde cannot visit retaliation upon those who testified against him. In these cases, to the contrary, only a legal technicality can cause that fear of retaliation to “relate back” to the beginning of the disciplinary proceedings, when it was not clear that the public defenders’ testimony had more weight than any other out-of-court criticisms or defenses of the judge. It is likely that the public will see the panel’s needless vacatur of the defendants’ sentences as a strike against the judicial process. Cf. O’Keefe, 128 F.3d at 893 (“decisions that are based on technicalities and do not reach the merits of the ease increase public distrust of the legal system”). Thus, under the three-prong harmless error analysis, these sentences should stand. Even in Jordan, a ease relied upon by my colleagues, the court weighed different remedies, ultimately refusing to reverse a conviction but vacating an “excessively harsh” sentence. United States v. Jordan, 49 F.3d 152, 158-59 (5th Cir.1995). In vacating the sentence, the Jordan court highlighted both its “apparent harshness” and the judge’s “unbridled sentencing discretion ... in [that] pre-Guidelines case.” Id. at 159. By contrast, Judge McBryde sentenced the defendants in these cases within the Guidelines, and, as discussed above, there can be no argument that his" }, { "docid": "23098218", "title": "", "text": "too willing to indulge suspicions and doubts concerning the integrity of judges’” (quoting Liljeberg, 486 U.S. at 864-65, 108 S.Ct. 2194)). We are bound to conclude that, given the specific facts alleged in the plaintiffs’ original and supplemental motions to disqualify, Judge Cobb should have recused himself under § 455(a). Thus, we need not address the other provisions of § 455. . C 1 Although we conclude that Judge Cobb should have stood recused under § 455(a), we do not automatically vacate the rulings issued after he should have recused himself. In our circuit, the “harmless error” rule has long been applied in this context. Monroe, 178 F.3d at 309; United States v. O’Keefe, 128 F.3d 885, 892 (5th Cir.1997); Doddy v. Oxy USA, Inc., 101 F.3d 448, 458-59 (5th Cir. 1996); In re Continental, 901 F.2d at 1263. We consider the following factors in determining whether reversal or vacation is mandated: (1) the risk of injustice to the parties in this case; (2) the risk that denial of relief will create injustice in other cases; and (3) “the risk of undermining the public’s confidence in the judicial process.” Liljeberg, 486 U.S. at 864, 108 S.Ct. 2194; In re Continental, 901 F.2d at 1263. The plaintiffs dispute the applicability of the harmless error rule, arguing that when a judge erroneously fails to stand recused, our precedent dictates that the judge’s post-recusal orders must be automatically vacated. Tramonte v. Chrysler Corp., 136 F.3d 1025, 1028 (5th Cir.1998); see also Republic of Pan. v. Am. Tobacco Co., 217 F.3d 343, 347 (5th Cir.2000) (citing Tramonte ); Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir.1999) (same). To the extent Tramonte and the cases that cite it are inconsistent with In re Continental and its progeny, the older line controls. Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 541 n. 9 (5th Cir.2002) (reiterating that one panel of this court cannot overrule an earlier panel’s decision). This conclusion is bolstered by the fact that the rule established in In re Continental is based on the clear wording of Liljeberg," }, { "docid": "22258627", "title": "", "text": "failing to enforce his recusal and in denying the motion for reconsideration. O’Keefe argues that Chief Judge Sear properly refused to enforce the recusal because, quite simply, Judge Lemmon could not reconsider what Judge Lemmon had not considered in the first place. Once a judge recuses himself from a case, the judge may take no action other than the ministerial acts necessary to transfer the case to another judge, even when recusal is improvidently decided. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 457 (5th Cir.1996) (holding that judge erred in vacating recusal order after recusing herself); Moody v. Simmons, 858 F.2d 137, 143 (3rd Cir.1988) (stating that judge may only perform the “housekeeping” duties necessary to transfer a case to another judge after recusing himself from a proceeding). A ministerial act is usually defined as an act that is essentially clerical and does not involve the exercise of discretion or judgment. See United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420, 51 S.Ct. 502, 504, 75 L.Ed. 1148 (1931) (describing a ministerial duty as one in which “the obligation to act [is] peremptory, and plainly defined”); Moody, 858 F.2d at 143 (holding that orders converting Chapter 11 bankruptcy to Chapter 7 bankruptcy, disqualifying counsel, vacating a contingent fee agreement, and making findings attacking counsel exceeded “housekeeping” orders). A district court necessarily has discretion as to whether to reopen a case in response to a motion for reconsideration. See Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.1990). Thus, when Chief Judge Sear ruled on the motion for reconsideration, he performed a discretionary act, not a ministerial act. O’Keefe (as Chief Judge Sear noted below) essentially argues that an exception from the bright-line rule for recusals described above should be created for motions for reconsideration because a judge cannot reconsider what that judge has not considered previously. Toward this end, O’Keefe cites McRae v. United States, 420 F.2d 1283 (D.C.Cir.1969), for the proposition that a district court judge cannot reconsider matters previously decided by another district court judge, and that the proper" }, { "docid": "22258631", "title": "", "text": "that denial of relief will produce injustice in other cases, and (3) the risk of undermining the public's confidence in the judicial process. See Liljeberg, 486 U.S. at 864, 108 S.Ct. at 2205; Doddy, 101 F.3d at 458. As we explain below, we conclude that it is unnecessary to vacate Chief Judge Sear’s ruling and remand for Judge Lemmon to rule on the motion for reconsideration because Chief Judge Sear’s ruling on the motion for reconsideration was harmless error. Applying the three-part harmless error test, we first note that little risk of injustice to the parties will result from not vacating the denial of the motion for reconsideration and remanding for reconsideration by Judge Lemmon. The record is sufficient for us to review the order granting new trial. Our review of the order granting a new trial and the denial of the motion for reconsideration under an abuse of discretion standard, United States v. Pankhurst, 118 F.3d 345, 353 (5th Cir.1997), is only slightly more deferential than a district court’s review under the law of the case doctrine. See Abshire, 668 F.2d at 837 (holding that a successor judge should generally treat an order in a case transferred by another judge with deference). Moreover, were we to vacate Chief Judge Sear’s order denying the motion for reconsideration, then the motion for reconsideration would still be pending, and we would have to remand for Judge Lemmon to rule on that motion. See Southland Indus. v. Federal Communications Comm’n, 99 F.2d 117 (D.C.Cir.1938) (holding that a decision is not final until an application for reconsideration has been decided). Although the need for an appeal to this court might well be obviated by Judge Lemmon’s decision, it is also possible that Judge Lemmon might deny the motion for reconsideration, which would then produce yet another appeal on the merits of the appeal now before us. Further, both the government and O’Keefe have fully discussed the merits of 'this case in their briefs, which, when considered together with the other facts we adduced above, leads us to conclude that neither party would be prejudiced" }, { "docid": "22258633", "title": "", "text": "by our deciding the merits of this appeal without remanding to Judge Lemmon for a ruling on the motion for reconsideration. Second, our decision today.’aids, rather than prejudices justice in other cases because it clarifies an unclear area of the law and serves as a caution to district court judges of the importance of taking no discretionary actions after recusal. It was not until 1984 that 18 U.S.C. § 3731 was amended to permit the government to appeal the interlocutory grant of a new trial. Pub.L. No. 98-473, § 1206, 98 Stat.1986 (1984) (codified at 18 U.S.C. § 3731). Liljeberg, which established the three-part harmless error standard for review of decisions made by a judge after recusal becomes appropriate, was not decided until 1988. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Moody, the first major case concluding that a judge could take no action after recusal other than to perform ministerial acts, was decided in the same year, and we only reached the same conclusion in December of 1996, after Chief Judge Sear had denied the reconsideration motion in this case. Doddy v. Oxy, USA, Inc., 101 F.3d 448 (5th Cir.1996); Moody v. Simmons, 858 F.2d 137 (3rd Cir.1988). Thus, our decision today aids justice in other cases by alerting judges to the importance of taking no further discretionary actions after recusal. Finally, there is little risk of undermining the public's confidence in the judicial process. While in some eases vacation of orders issued by a judge will restore public confidence in the legal system, see United States v. Jordan, 49 F.3d 152 (5th Cir.1995), other courts have held that decisions that are based on technicalities and do not reach the merits, of the ease increase public distrust of the legal system. See Parker v. Connors Steel Co., 855 F.2d 1510, 1527 (11th Cir.1988). A pragmatic approach should be taken to the notion of harmless error so that when in doubt, a court can reach the merits of an appeal. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294," }, { "docid": "5046211", "title": "", "text": "consider the question of vacatur de novo was riot based upon a patent misapplication of the standards governing motions for reconsideration. Because Judge McClure’s decision on this issue did not reflect a balancing of the pertinent factors, de novo consideration of the vacatur issue was indeed warranted. The final reason for rejecting AT & T’s contention that vacatur should not have been considered de novo is that Judge McClure himself should not have addressed this issue. “As a general rule, a trial judge who has recused himself ‘should take no other action in the case except the necessary ministerial acts to have the case transferred to another judge.’ ” El Fenix de Puerto Rico v. M/Y JOHANNY, 36 F.3d 136, 141 (1st Cir.1994). In El Fénix, the Court held that a decision by a disqualified judge to vacate the judgment entered in the ease “runs afoul of the general rule that the re-cused judge should take no farther action except to enable administrative reassignment of the case.” Id. at 142. Because a judge who has recused himself “acts outside his jurisdiction” in addressing substantive matters after he recognizes that disqualification is warranted, and thus commits “a clear error of law,” Moody v. Simmons, 858 F.2d 137, 143 (3rd Cir.1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1529, 103 L.Ed.2d 835 (1979), de novo consideration of the vacatur issue was plainly appropriate. B. Application of the Liljeberg Factors. AT & T argues that my de novo consideration of the vacatur issue reached an inappropriate result. Initially, AT & T contends that vacatur is inappropriate where a judicial officer is disqualified on the basis of an appearance of partiality. (AT & T Reply Brief (Dkt. Entry 878) at 2-j..) In support of this assertion, AT & T relies on two preLiljeberg cases. But Liljeberg itself was a § 455(a) case. Since Liljeberg, judgments have been set aside solely because an appearance of partiality had warranted recusal. See, e.g., United States v. Jordan, 49 F.3d 152, 159 (5th Cir.1995); United States v. Kelly, 888 F.2d 732, 747 (11th Cir.1989). Indeed, the Supreme Court’s" } ]

[ { "docid": "22683249", "title": "", "text": "decision affirming the dismissal of the murder charge is much easier to discern, since the text of the court’s syllabus refers directly to the prohibition against double jeopardy. Although the court’s reference to double jeopardy might arguably be to the Ohio version, see Ohio Const., Art. I, § 10, the failure to indicate clearly that state double jeopardy protection was being invoked, when coupled with the references in the opinion to our decisions in North Carolina v. Pearce, 395 U. S. 711 (1969), and Ashe v. Swenson, supra, convinces us that the Ohio Supreme Court based its decision on its interpretation of the Double Jeopardy Clause of the Fifth Amendment as applied to the States by the Fourteenth Amendment. In the federal courts the test established in Blockburger v. United States, 284 U. S. 299, 304 (1932), ordinarily determines whether the crimes are indeed separate and whether cumulative punishments may be imposed. See Albemaz v. United States, 450 U. S. 333, 337 (1981); Whalen v. United States, 445 U. S. 684, 691 (1980). As should be evident from our decision in Missouri v. Hunter, however, the Blockburger test does not necessarily control the inquiry into the intent of a state legislature. Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court’s inquiry is at an end. Respondent also argues that prosecution on the remaining charges is barred by the principles of collateral estoppel enunciated by this Court in Ashe v. Swenson, 397 U. S. 436 (1970). Even if the two were mutually exclusive crimes, see n. 6, supra, the taking of a guilty plea is not the same as an adjudication on the merits after full trial, such as took place in Ashe v. Swenson. Moreover, in a case such as this, where the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of collateral estoppel are inapplicable. We see no need to address the manner in which the trial court should resolve the question" } ]

[ { "docid": "1641772", "title": "", "text": "same conduct. Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981). To determine whether Congress intended that two statutory offenses be punished cumulatively, we apply the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932): The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. See Albernaz, 450 U.S. at 337, 101 S.Ct. at 1141; Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715 (1980). “ ‘If each [offense] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’ ” Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977) (quoting Ianelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975)). The two statutes under which Karlic was sentenced satisfy the Blockburger test. Section 844(h) requires proof of the commission of a separate “felony which may be prosecuted in a court of the United States” (in this ease, entering a bank with intent to commit larceny), an element not required by § 844(i). Section 844(i) requires proof of damaging or attempting to damage “property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce,” an element not required by § 844(h). Finally, nothing in the legislative history of § 844 discloses an intent contrary to the Blockburger presumption. See Albernaz, 450 U.S. at 340, 101 S.Ct. at 1143; United States v. Fiore, 821 F.2d 127, 131-32 (2nd Cir.1987). Thus Karlic’s consecutive sentences under these sections did not constitute double jeopardy. Our conclusion accords with Fiore, in which the defendant burned down his business in an attempt to commit mail fraud against" }, { "docid": "8419672", "title": "", "text": "two statutes ... a court’s task of statutory construction is at an end.” Hunter, 459 U.S. at 368-69, 103 S.Ct. 673. However, where, as in this case, neither statute specifically authorizes cumulative punishment, courts generally apply the rule of construction announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304, 52 S.Ct. 180. It is important not to overstate the Blockburger “same-elements” test’s role under this third double-jeopardy protection. It does not limit the legislative branch, which has “the substantive power to define crimes and prescribe punishments.” Jones v. Thomas, 491 U.S. 376, 381, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989). “Where [the legislature] intend[s] ... to impose multiple punishments, imposition of such sentences does not violate the Constitution.” Albernaz, 450 U.S. at 344, 101 S.Ct. 1137. Rather, Blockburger is simply a rule of statutory construction. This distinction is critical to the disposition of this case, because where, as here, a defendant challenges cumulative punishment imposed for violations of state law, whether this cumulative punishment is authorized by the legislature is a question of state law. See Hunter, 459 U.S. at 368, 103 S.Ct. 673. The Supreme Court repeatedly has held, in the double-jeopardy context, that whether a state legislature intends cumulative punishment for two offenses is an issue of state law, over which state courts have final authority. In Hunter, for example, the Court declined to reexamine the Missouri Supreme Court’s conclusion that cumulative punishment was intended for the Missouri offenses at issue in that case, maintaining that “[w]e are bound to accept the Missouri court’s construction of that State’s statutes.” Id. And again in Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), the Court refused to revisit the Ohio Supreme Court’s determination of the Ohio legislature’s intent, simply stating that “[w]e" }, { "docid": "3227648", "title": "", "text": "2407, 85 L.Ed.2d 764 (1985). Thus, determining the permissibility of imposing multiple punishments for one course of conduct is a matter of discerning the legislature’s intent. See Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Often, however, this intent will not be apparent. In such cases, the Block-burger test is employed to determine whether the legislature intended to authorize multiple punishments. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Catala Fonfrias v. United States, 951 F.2d 423, 425-26 (1st Cir.1991). Under Blockburger, “where the same act or transaction constitutes a violation of two (or more) distinct statutory provisions, the test to be applied to determine whether there are two (or more) offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180. It must be emphasized, however, that for multiple punishment claims, Blockburger merely provides a default rule of statutory construction and should be employed only in the absence of a clear indication of legislative intent. See Rivera-Martinez, 931 F.2d at 154 (citing Hunter, 459 U.S. at 367, 103 S.Ct. 673). Patel relies exclusively on Block-burger in framing his argument. Were we to reflexively apply Blockburger to this case, Patel’s claim might well have some merit. Mail fraud and using fire to commit mail fraud appear to fail Blockburger’s separate offense test because every element of mail fraud is an element of using fire to commit mail fraud. See Whalen v. United States, 445 U.S. 684, 693-94, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (holding that rape and a “killing committed in the course of a rape” are the same offense under Blockburger because the killing charge requires proof of all the elements of the rape charge and therefore, in the absence of a contrary legislative intent, separate punishments are impermissible). However, Patel has entirely ignored the threshold question for reaching the Block-burger analysis in the first place, namely, what was Congress’ intent in enacting the using fire statute. This" }, { "docid": "23622732", "title": "", "text": "that Counts Two, Four, and Six are duplicitous, the Appellants cite United States v. Calderon, 169 F.3d 718, 720 (11th Cir.1999), in which we stated that “[t]he four subsections of Section 1956(a)(1) are separate offenses,” each requiring different elements of proof. They acknowledge that Calderon dealt with a different statutory provision but contend that its discussion is relevant to our analysis since the three subsections of § 1956(a)(3) contain the same language as three of the four subsections in § 1956(a)(1). They submit that it would be incongruous for us to interpret the former differently from the latter. Additionally, the Appellants argue that we should analyze duplicity under the test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), which requires us to look at “whether each provision requires proof of a fact which the other does not.” They contend that the subsections of § 1956(a)(3), when evaluated under the Blockburger test, would be separate offenses since each subsection requires proof of an additional fact which the other does not. For example, subsection (C) requires proof that the defendant intended to avoid a transaction reporting requirement, while subsection (B) does not. See 18 U.S.C. § 1956(a)(3)(B)-(C). The Supreme Court has described the Blockburger test as “a rule of statutory construction.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). Specifically, the Blockburger rule helps to determine whether Congress intended to punish the same offense under two different statutes. We ordinarily assume that Congress did not have such an intent. See id. at 678. “Accordingly, where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.” Id. at 678. (quotation marks and citation omitted, emphasis in original). In other words, even if two statutory provisions punish the same offense under the Blockburger test, multiple punishments would be permissible if Congress clearly intended that. See id. at 367, 103 S.Ct. at 678. In accordance with the Supreme Court’s refinement of the" }, { "docid": "23100382", "title": "", "text": "Cir.1986). The conventional test for determining whether Congress intended separate punishments under separate statutes was crafted in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932): The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied ... is whether each provision requires proof of a fact which the other does not. Id. at 304, 52 S.Ct. at 182; see also Ortiz-Alarcon, 917 F.2d at 653-54 (Blockburger test remains in constitutional vogue in multiple punishment cases). We are quick to note, however, that the Blockburger test is only a rule of statutory construction. It is not controlling where “there is a clear indication of contrary legislative intent.” Hunter, 459 U.S. at 367, 103 S.Ct. at 678, quoting Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981). This is such a case. The defendant strives to cast our inquiry in terms of deciding whether or not the predicate counts of aiding and abetting are lesser included offenses of the CCE count. Were we to adopt that approach, and woodenly apply the Blockburger test, the argument for double jeopardy would be a powerful one. But the appellant is fishing in an empty stream. The Supreme Court made it very clear that the Blockburger test is inappropriate in analyzing section 848 because “logic supports the conclusion, also indicated by the legislative history, that Congress intended separate punishments for the underlying substantive predicates and for the CCE offense.” Garrett v. United States, 471 U.S. 773, 795, 105 5.Ct. 2407, 2419, 85 L.Ed.2d 764 (1985); see also Jones, 918 F.2d at 911 (noting that Garrett allows for separate sentences on both a section 841(a)(1) predicate offense and a section 848 CCE conviction); Jefferson, 782 F.2d at 701 (same); United States v. Burt, 765 F.2d 1364, 1369 (9th Cir.1985) (same). The only question, then, is whether the aiding and abetting counts charge substantive acts within the contemplation of the Garrett Court. Of this, there can be no legitimate doubt. The statute" }, { "docid": "12694744", "title": "", "text": "and consecutively to the conspiracy and mail fraud sentences. On appeal, Shriver raises fourteen points, only some of which merit discussion. DOUBLE JEOPARDY Shriver contends that his convictions of mail fraud and using fire to commit a felony (mail fraud) violate the double jeopardy clause of the fifth amendment to the United States Constitution. He relies on the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), which held that “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Shriver argues that the arson offense requires no proof in addition to that needed to establish the mail fraud. See, e.g., Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411-12, 85 L.Ed.2d 764 (1985) (continuing criminal enterprise and underlying predicate offenses are the same for double jeopardy purposes under Blockburger analysis); United States v. Kragness, 830 F.2d 842, 864 (8th Cir.1987) (RICO and predicate offenses are “same” under Blockburger). We need not reach the merits of Shri-ver’s claim that Blockburger applies to his case, however. When applied to a single proceeding, Blockburger merely provides a means for statutory interpretation in determining whether the legislature authorized the imposition of separate punishments. Garrett, 471 U.S. at 778-79, 105 S.Ct. at 2411-13; Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679-80, 74 L.Ed.2d 535 (1983); Kragness, 830 F.2d at 863. “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Hunter, 459 U.S. at 366, 103 S.Ct. at 678. Thus, “the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress.” Garrett, 471 U.S. at 779, 105 S.Ct. at 2412. To resolve this issue we need look no further than the legislative" }, { "docid": "22441355", "title": "", "text": "the district court described the crimes identically, the charges in this case violate the “same elements” test articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (stating that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not”). Dowd’s argument fails for the reasons the defendant’s claim failed in Martin. In Martin, the defendant was convicted of carjacking with a firearm, in violation of 18 U.S.C. § 2119, and of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Martin, 38 F.3d at 535. Believing that sentencing the defendant for both crimes would violate the Double Jeopardy Clause, the district court refused to sentence the defendant for the § 924(c) violation. We reversed, citing with approval the Fifth Circuit’s opinion in United States v. Singleton, 16 F.3d 1419 (5th Cir.1994). Martin, 38 F.3d at 535. In Singleton, our sister circuit determined that the defendant’s consecutive sentences did not violate the Double Jeopardy Clause even though “proof of a violation of § 2119 always proves a violation of § 924(c), and the two statutes fail the Blockbuster ‘same elements’ test.” Singleton, 16 F.3d at 1425. Where, as in § 924(c), Congress has authorized the imposition of consecutive sentences, it is irrelevant for Double Jeopardy purposes whether or not the crimes fail the Block-burger “same elements” test. See id. at 1420. Accordingly, we need not consider whether the elements of 18 U.S.C. § 2114 and 18 U.S.C. § 924(c) fail the Blockburger “same elements” test because the Block-burger test is not controlling where the legislative intent to impose cumulative punishments is clear. See Kaiser, 893 F.2d at 1304 (citing Hunter, 459 U.S. at 368, 103 S.Ct. at 679). As the Supreme Court has instructed, “[e]ven if the crimes are the same under Blockburger, if it is evident that a state legislature intended to" }, { "docid": "8653719", "title": "", "text": "a stolen motor vehicle. All of the sentences were to run consecutively. Defendant argues that the consecutive sentences were improperly imposed because all of the criminal acts committed here were really parts of one transaction. In discussing the issue raised by defendant, we must consider two aspects of the sentences separately: (1) is it permissible to impose consecutive sentences on a criminal defendant for kidnapping and a Mann Act violation committed in the same transaction, and (2) is it permissible to impose consecutive sentences for kidnapping two victims in one trip. A. Kidnapping and Mann Act Convictions We have held in the past that “[a] court may ... in a proper case impose separate and consecutive sentences for violation of different statutory provisions in a single transaction. The test ‘is whether each provision requires proof of a fact which the other does not.’ ” United States v. Mathis, 579 F.2d 415, 418 (7th Cir. 1978) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)). The Supreme Court’s recent opinion in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), however, modified the Blockburger approach. As the Sixth Circuit stated in Pandelli v. United States, 635 F.2d 533 (6th Cir. 1980): The Blockburger test, as modified in Whalen ..., comes into play only after other techniques of statutory construction have proved to be inconclusive. The first step is for the court to inquire “whether Congress intended to punish each statutory violation separately,” Jeffers v. United States, 432 U.S. 137, 155 [97 S.Ct. 2207, 2218, 53 L.Ed.2d 168] (1977). To determine the congressional intent it is necessary to examine the statutory language and legislative history, as well as to utilize other techniques of statutory construction. .. . The Court reaches the Blockburger test only when those prior techniques of construction have failed to resolve the question of whether the legislature intends to allow cumulative punishments for violation of two statutes. Id., at 536 (citation omitted). In Hattaway v. United States, 399 F.2d 431, 433 (5th Cir. 1968), the court" }, { "docid": "22584285", "title": "", "text": "after conviction. And it protects against multiple punishments for the same offense. Here, defendant invokes the third element of double-jeopardy protection, claiming that, by imposing consecutive sentences under counts III and IV, he is being twice punished for the “same offense.” The Double Jeopardy Clause does not necessarily preclude concurrent prosecution under a single indictment for crimes arising from a single transaction— even if the multiple counts in the indictment are, as here, under different sections of the same statute. See, e.g., Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). In the context of concurrent (rather than consecutive) prosecutions, the Clause only prohibits the government from seeking, and the courts from imposing, punishments exceeding legislative authorization. The Supreme Court made this clear in Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983): “[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Court further explained: The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent. Id. at 691-92, 100 S.Ct. at 1437-38; see Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981) (“[t]he Blockburger test is a rule of statutory construction”). Under Blockburger, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182. Following Blockburger, the Court of Appeals for the Second Circuit applied a three-step inquiry: First, the language of the provisions must be analyzed. If the two offenses charged are set forth in separate statutes" }, { "docid": "22584286", "title": "", "text": "intended.” In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Court further explained: The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent. Id. at 691-92, 100 S.Ct. at 1437-38; see Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981) (“[t]he Blockburger test is a rule of statutory construction”). Under Blockburger, “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182. Following Blockburger, the Court of Appeals for the Second Circuit applied a three-step inquiry: First, the language of the provisions must be analyzed. If the two offenses charged are set forth in separate statutes or are in different sections of one statute or in different parts of a section, and each clearly authorizes a punishment for the violation of that provision, it will ordinarily be inferred that [the legislature] intended to authorize punishment under each provision. Second, the Blockburger test, i.e., whether each provision requires proof of a fact that the other does not, is employed to ascertain whether the inference that [the legislature] intended multiple punishments is a reasonable one. If the Blockburger test is satisfied, it may be presumed that multiple punishments are authorized. Finally, this presumption is tested against the legislative history of the applicable provisions to be sure there is no contrary [legislative] intent. United States v. Maldonado-Rivera, 922 F.2d 934, 981 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2858, 115 L.Ed.2d 1025 (1991). These principles guide us today. Defendant was convicted and sentenced for possession of a firearm and possession of a firearm during a crime of violence. 14 V.I.C. § 2253(a) defines both offenses: Whoever, unless otherwise authorized by law, has," }, { "docid": "22444186", "title": "", "text": "v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) (“Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature ... intended that each violation be a separate offense.”). If the statute does not clearly authorize cumulative punishment, however, “the courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” Brown, 432 U.S. at 165, 97 S.Ct. 2221. In this case, neither statute contains clear and unambiguous legislative language allowing cumulative convictions and punishments for the same act of the defendant. The legislative history of § 1028A discusses both statutes and authorizes cumulative sentences in some instances, but does not authorize cumulative sentences for violations of §§ 1028(a)(7) and 1028A(a)(l). Since congressional intent is not clear from the statute itself, we must turn to the same elements test laid out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). 2. Blockburger — “Same Elements” Test To determine whether the courts have violated the protection of the Fifth Amendment, we turn to the test set out in Blockburger: “The applicable rale is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. (citing Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911)). We start our Blockburger analysis by examining the statutory elements of each offense. A person commits identity theft in violation of § 1028(a)(7) if he or she (1) “knowingly transfers, possesses, or uses”; (2) “without lawful authority”; (3) “a means of identification of another person”; (4) “with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable" }, { "docid": "18867671", "title": "", "text": "(1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). In this case we are dealing only with the multiple punishment problem. Where the same conduct violates two statutory provisions, whether each violation is a separate offense is a question of legislative intent. See Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). It is well settled that the legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause, so long as it expresses its intent to do so clearly. See id. at 778-79, 105 S.Ct. at 2411-12. In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Court stated that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” See also Dixon, — U.S. at -, 113 S.Ct. at 2856 (discussing Blockburger, or “same-elements,” test). However, the Blockburger test is “a rule of statutory construction to help determine legislative intent” and “is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett, 471 U.S. at 778-79, 105 S.Ct. at 2411. Section 924(e) provides, in relevant part, the following: Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years_ Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation" }, { "docid": "2619604", "title": "", "text": "of sentences. See id. at 175. In deciding whether Galvan is correct that Congress did not intend to permit multiple punishments for violations of §§ 1512(a)(1)(A) and (C), “our starting point must be the language of the statute[].” Albernaz v. United States, 450 U.S. 333, 336, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). “Absent a ‘clearly expressed legislative intention to the contrary, the language must ordinarily be regarded as conclusive.’ ” Id. (quoting Consumers Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). And, to decide whether two statutory offenses may be punished cumulatively, we next apply the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Albernaz, 450 U.S. at 337, 101 S.Ct. at 1141; Munoz-Romo, 947 F.2d at 175. ‘The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ Albernaz, 450 U.S. at 337, 101 S.Ct. at 1141 (quoting Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980)). However, as noted, “the Blockburger test does not control in the face of clearly expressed contrary legislative intent.” Munoz-Romo, 947 F.2d at 175 (citing United States v. York, 888 F.2d 1050, 1058 (5th Cir.1989)). Galvan was convicted of violating two provisions in the same statute, not two different statutes. Of course, our analysis is the same, whether the asserted multiplicity is the result of a conviction under two statutes or, instead, subparts of a subsection of a single statute, as here. Munoz-Romo, 947 F.2d at 175. We therefore consider whether the plain wording of the statute and any legislative intent permit multiple punishments. Nothing in the statute suggests that a single attempted killing cannot, at the same time, violate more than one of the three subparts of § 1512(a)(1). As long as a defendant is charged with possessing" }, { "docid": "12343429", "title": "", "text": "violations of 21 U.S.C. §§ 846 and 963. An examination of the language of each statute revealed that each unambiguously authorized punishment for violations of its terms. However, neither statute contained an explanation of how its punishments related to punishments authorized by the other. The legislative history of the statutes was likewise silent on the question of whether consecutive sentences could be imposed for violations of sections 846 and 963. As a third alternative, the Court applied the Blockburger rule to determine whether Congress intended the two statutory offenses to be cumulatively punished. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. 284 U.S. at 304, 52 S.Ct. at 182. See also cases refining Blockburger: Illinois v. Vi-tale, 447 U.S. 410,100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Courts will infer from the existence of a single offense that Congress did not intend to authorize the imposition of cumulative punishments. The Albernaz Court concluded that “[sjection 846 and 963 specified] different ends as the proscribed object of the conspiracy — distribution as opposed to importation .... ” 450 U.S. at 339, 101 S.Ct. at 1142. Hence, Congress intended to permit consecutive sentences for violations of both provisions. The Court cautioned that the Blockburger rule is merely a “means of discerning congressional purpose” and does not control where “there is a clear indication of contrary legislative intent.” 450 U.S. at 340, 101 S.Ct. at 1143. Albernaz teaches that multiple punishment for related offenses are constitutionally permissible where Congress intends to authorize multiple punishments. Congressional intent is discerned through statutory language, legislative history, and the Block-burger rule. Our inquiry in the present" }, { "docid": "9731921", "title": "", "text": "jeopardy analysis is to determine whether the legislature ... intended that each violation be a separate offense.” Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). If the legislature, as expressed in the language of the statute or its legislative history, clearly intended cumulative punishment under two different statutory provisions, the imposition of multiple punishment does not violate the Double Jeopardy Clause and the court’s inquiry is at an end. Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). If the legislative intent is unclear, however, the rule from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), must be applied. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. Then, “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. In the instant case, we need not apply the Blockburger test because Congress expressly authorized multiple punishment under § 924(c)(1): “Whoever, during and in relation to any crime of violence ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ..., be sentenced to imprisonment for five years_ Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence ... in which the firearm was used or carried.” 18 U.S.C. § 924(c)(1) (emphasis added). The plain language of this statute clearly evinces congressional intent that any defendant using a dangerous weapon in connection with a violent crime must be sentenced to five years imprisonment, such sentence to run consecutive to that imposed for the" }, { "docid": "1165382", "title": "", "text": "717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In determining what constitutes the “same offense,” Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), states: The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. 284 U.S. at 304, 52 S.Ct. at 182; see also Whalen v. United States, 445 U.S. 684,100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The majority concedes that robbery is a lesser included offense of felony murder in Nevada, because the robbery statute, Nev.Rev. Stat. § 200.380 (1985), does not require proof of any fact beyond those required to convict under the statute for murder committed in the perpetration of robbery, Nev. Rev.Stat. § 200.030 (1985). Yet even if the two statutes do proscribe the same conduct, recent Supreme Court cases hold that the Double Jeopardy Clause does not prevent the imposition of cumulative punishments if the legislature clearly intends that result. Whalen notes that Blockburger established a rule of statutory construction: The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent. 445 U.S. at 691-92, 100 S.Ct. at 1437-38 (emphasis added). Similarly, Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), states that: [t]he Blockburger test is a “rule of statutory construction,” and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. 450 U.S. at 340, 101 S.Ct. at 1142 (emphasis added). And in Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Court amplified its prior holdings: Our analysis and reasoning in" }, { "docid": "8653720", "title": "", "text": "recent opinion in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), however, modified the Blockburger approach. As the Sixth Circuit stated in Pandelli v. United States, 635 F.2d 533 (6th Cir. 1980): The Blockburger test, as modified in Whalen ..., comes into play only after other techniques of statutory construction have proved to be inconclusive. The first step is for the court to inquire “whether Congress intended to punish each statutory violation separately,” Jeffers v. United States, 432 U.S. 137, 155 [97 S.Ct. 2207, 2218, 53 L.Ed.2d 168] (1977). To determine the congressional intent it is necessary to examine the statutory language and legislative history, as well as to utilize other techniques of statutory construction. .. . The Court reaches the Blockburger test only when those prior techniques of construction have failed to resolve the question of whether the legislature intends to allow cumulative punishments for violation of two statutes. Id., at 536 (citation omitted). In Hattaway v. United States, 399 F.2d 431, 433 (5th Cir. 1968), the court held that the congressional purposes underlying the enactment of the Mann Act and the kidnapping statute were different, and that therefore a defendant could be prosecuted for both even though the prosecutions were based on the same acts. We agree with that holding. This circuit has recognized that congressional intent in enacting the Mann Act was to protect the morals of the community, while the purpose of the kidnapping statute was to protect the liberty and life of the victim. Seadlund v. United States, 97 F.2d 742, 747 (7th Cir. 1938). Further, the two statutes were enacted more than twenty years apart. Even if the legislative intent is unclear, our interpretation of the Mann Act and kidnapping statute as two distinct offenses is supported by the Blockburger analysis. The elements of a Mann Act charge are the knowing or wilful interstate transportation of a woman for immoral purposes. The elements of kidnapping under the federal statute are the knowing or wilful seizure of an unconsenting person who is detained and transported across state lines. See" }, { "docid": "11811915", "title": "", "text": "provision to proscribe both multiple trials and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Court made clear, however, that the double jeopardy clause bars multiple punishment for a single offense in one proceeding only when the legislature did not intend cumulative punishment. Id. at 366, 103 S.Ct. at 678 (“[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does not more than prevent the sentencing court from prescribing greater punishment than the legislature intended”). When the same act violates two distinct statutory provisions, whether the legislature intended to create two separately punishable offenses or one is determined by the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger inquiry is whether each statute requires proof of an additional fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. The Supreme Court has held that Blockburger states a rule of statutory construction, not a constitutional requirement. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). Therefore, the Blockburger rule is not controlling where there is clear indication of a contrary legislative intent. Hunter, 459 U.S. at 368, 103 S.Ct. at 679; Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981). Thus, in the case before us, appellants’ convictions in a single proceeding under sections 922(i) and 1202(a)(1) of the Omnibus Crime Control Act violate the double jeopardy clause only if Congress intended that these statutes describe a single offense and there is no evidence that Congress intended to impose cumulative punishment for violation of these provisions. Applying the Blockburger test to the present case, it is evident that sections 1202(a)(1) and 922(i) of the Omnibus Crime Control Act describe separate offenses. To establish a violation of section 1202(a)(1), the government must prove that a person who has" }, { "docid": "2968253", "title": "", "text": "or her prima facie case, the burden of persuasion shifts to the government to prove by a preponderance of the evidence that the two indictments charge the defendant with legally separate crimes.” Id. (citing Felton, 753 F.2d at 278). Importantly, the Double Jeopardy Clause prohibits repeat trials for the same offense, not for the same conduct. Accordingly, a defendant may be subject to multiple prosecutions for the same conduct if Congress intended to impose multiple punishments for that conduct. See Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). In other words, a defendant generally may be subject to multiple prosecutions so long as each prosecution involves a different offense. 1. The Blockburger Test Before evaluating the merits of the Rigases’ double jeopardy claims, we must determine the appropriate analytical test to apply. The Government contends that to determine whether § 371 reveals Congress’ intent to separately punish the same course of conduct, we should apply the test the Supreme Court outlined in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Rigases, on the other hand, argue in favor of utilizing the broader totality-of-the-circumstances test to discern congressional intent. In Blockburger the Supreme Court states that, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. (citations omitted). In other words, “[u]nder the Blockburger test, a court looks to the statutory elements of the crime charged to determine if there is any overlap.” United States v. Chorin, 322 F.3d 274, 281 (3d Cir.2003). Thus, in Albernaz the Supreme Court concluded that the Blockburger test applies where the defendant’s conduct violated multiple conspiracy statutes. 450 U.S. at 339-10, 101 S.Ct. 1137; see also United States v. Xavier, 2 F.3d 1281, 1290-91 (3d Cir.1993) (applying Blockburger test where single statute was clearly divided into separate provisions with different penalty provisions). The Blockburger test is" }, { "docid": "16803911", "title": "", "text": "(Counts 6, 9, 11, 13, 15, 17, 24, 26) are multiplicitous of the analogous D.C. criminal counts of assault with a dangerous weapon (Count 5), assault with intent to murder while armed (Counts 8, 10, 14, 16, 23, 25) and first degree murder while armed (Count 12). The court did not plainly err in failing sua sponte to strike the D.C. or federal counts as multiplicitous. To determine multiplicity vel non, courts generally apply the Blockburger test: “ ‘[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not,’ ” i.e., whether either is a lesser included offense of the other. Weathers, 186 F.3d at 951 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). The Blockburger test, however, provides only a canon of construction, not a “conclusive presumption of law.” Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); see United States v. McLaughlin, 164 F.3d 1, 8 (D.C.Cir.1998) (“As a tool of statutory construction, the Blockburger test is not absolutely controlling.” (citing Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981))). “ ‘There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.’ ” Garrett, 471 U.S. at 779, 105 S.Ct. 2407 (quoting Albrecht v. United States, 273 U.S. 1, 11, 47 S.Ct. 250, 71 L.Ed. 505 (1927)) (emphasis in Garnett). Thus, “the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress,” that is, “when the legislative intent is clear from the face of the statute or the legislative history.” Id. (citing Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz, 450 U.S. at 340, 101 S.Ct. 1137; Whalen v. United" } ]

[ { "docid": "14239993", "title": "", "text": "violation of state laws. Thus, the inquiry under this portion of the indictment is directed to whether the elk which were transported were killed in violation of either federal or state laws. To establish an illegal killing under federal law, the Government urges that 18 U.S.C. § 1165 makes illegal the unauthorized killing of wildlife on Indian reservations. We disagree and find persuasive the reasoning of the Montana Supreme Court: It is significant to note that section 1165 does not directly prohibit hunting and fishing but makes the act of going upon the Indian reservation a violation if done for the purpose of hunting or fishing [Sjection 1165 must be considered to be a statute providing a penalty for trespass to an Indian reservation and not an attempt by Congress to enter the field of fish and game regulation. State v. Danielson, Mont., 427 P.2d 689, 691 (1967). Turning to state law, the Government also argues that the elk were killed in violation of the Montana fish and game law, R.C.M. § 26-307(3). This, of course raises the preliminary issue of whether the Montana game laws apply to the activities of non-Indians on Indian reservations. We hold that they do. In reaching this determination, we again accept as a correct statement of the law the decision of the Montana Supreme Court in State v. Daniel-son, supra, wherein it was noted that: [TJhe State of Montana has jurisdiction to enforce its fish and game regulations on Indian reservations contained within its boundaries with respect to persons who are not tribal Indians unless precluded from doing so by an act of Congress or unless such enforcement would interfere with self-government on the reservation. 427 P.2d at 692-93. As mentioned above, 18 U.S.C. § 1165 does not represent an attempt by the federal government to enter the arena of fish and game regulation on Indian reservations; thus, the federal statute cannot be viewed as a prohibiting or conflicting act. Further, we are convinced that the application of Montana game laws to the activities of non-Indians on Indian reservations does not interfere with tribal" } ]

[ { "docid": "17126062", "title": "", "text": "HEANEY, Circuit Judge. This ease involves a long-standing dispute between the Lower Brule Sioux Tribe (“Tribe”) and the State of South Dakota and the Secretary of the State Game, Fish & Parks Division (“State”) concerning regulatory jurisdiction over hunting and fishing by nonmembers of the Tribe on nonmember-owned fee lands and waters and taken areas within the boundaries of the Lower Brule Sioux Reservation (“Reservation”). The Tribe brought this action to enjoin the State from enforcing its hunting and fishing laws over any person within the boundaries of the Reservation. The Tribe also sought declaratory relief that the State is barred from exercising any regulatory authority over hunting or fishing within the Reservation. Since this litigation began in 1980, the Supreme Court has handed down several important decisions relating to Indian sovereignty and tribal regulatory authority on different land classifications within Reservation boundaries. Accordingly, the district court determined that this action is substantially controlled by South Dakota v. Bourland (“Bourland III”), 508 U.S. 679, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993), rev’g, 949 F.2d 984 (8th Cir.1991), Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989) (plurality), and Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Following this line of authority, the district court granted the State’s motion for summary judgment. We agree that this result follows Supreme Court precedent and affirm. I. This ease began over sixteen years ago when the Tribe sought to enjoin the State from enforcing its fish and wildlife regulations on fee lands and taken lands within the boundaries of the Reservation and to obtain a declaratory judgment that the Tribe has exclusive regulatory jurisdiction over hunting and fishing by any person within Reservation boundaries. In the first phase of the litigation, the district court reserved ruling on matters pertaining to fee lands. With respect to lands taken by the Army Corps of Engineers for flood control projects at Fort Randall and Big Bend, the court held that the respective taking acts diminished the Reservation thereby divesting" }, { "docid": "17126079", "title": "", "text": "on lands and waters located in the Fort Randall and Big Bend taken areas within the boundaries of the Reservation. The district court held that Congress’s exercise of eminent domain abrogated the Tube’s treaty rights and that the Tribe’s inherent sovereignty does not extend to the regulation of hunting and fishing by nonmembers in the taken areas. As the Supreme Court explains, “regardless of whether land is conveyed pursuant to an Act of Congress for homesteading or for flood control purposes, when Congress has broadly opened up such land to non-Indians, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory control.” Bourland III, 508 U.S. at 692, 113 S.Ct. at 2318 (footnote omitted). Thus, it is necessary to look to the language of the Acts which effectuated the takings. Section 1 of the Fort Randall Taking Act, Pub.L. No. 85-923, 72 Stat. 1773, provides that the payments by the United States to the Lower Brule Sioux Tribe were in “settlement of all claims, rights, and demands of said tribe.” Section 1 of the Big Bend Taking Act, Pub.L. No. 87-734, 76 Stat. 698, is almost identical. Both provisions indicate that there was a mutual understanding between the United States and the Tribe that the Acts set forth all of the terms of the transaction and all the rights the Tribe would retain under the agreements. Section 5 of the Fort Randall Taking Act explicitly provides that the Tribe retains two rights, without cost: first, to graze livestock and, second, to hunt and fish in the taken area subject to the regulations governing the corresponding use of the land by other United States citizens. Similarly, Section 10 of the Big Bend Taking Act reserves for the Tribe and its individual members the right to hunt and fish on the taken area subject to the laws applicable to other citizens doing the same. The provisions set out above are almost identical to Sections 2 and 10 of the Cheyenne River Act, 68 Stat. 1191 (1954) (taking land for the Oahe Dam and Reservoir project in furtherance of" }, { "docid": "17126066", "title": "", "text": "exclusive jurisdiction to regulate nonmember hunting and fishing within both the fee and taken areas at issue. The Tribe appeals, arguing both that there are disputed material facts that make summary judgment inappropriate and that the court erred as a matter of law in determining that the State has exclusive jurisdiction to regulate hunting and fishing on non-trust lands within the Reservation. II. To provide some context for this dispute, we begin with a basic history of the Lower Brule Sioux Reservation. A more comprehensive background discussion, with particular detail about the relevant treaties and taking acts, is contained in Lower Brule I, 540 F.Supp. at 278-86. The Fort Laramie Treaties of 1851, 11 Stat. 749 (1851), and 1868, 15 Stat 635 (1868), established the boundaries of the Great Sioux Nation. See United States v. Sioux Nation of Indians, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980). The Lower Brule Sioux Reservation was established as part of a March 2, 1890 act of Congress that divided the Great Sioux Nation into five smaller ones. See 25 Stat. 888 (1889). The Reservation is situated in central South Dakota in northeastern Lyman County and extends slightly into the southeastern corner of Stanley County. The Reservation is bounded on the northeast and east by the Missouri River. The original area of the Reservation, which consisted of 446,500 acres, was twice diminished by Congress: first by the Act of March 3, 1899, 30 Stat. 1362 (1899), and second by the Act of April 21, 1906, 34 Stat. 124 (1906). The present Reservation consists of approximately 235,800 acres. The two classifications of Reservation areas at issue in this litigation are nonmember-owned fee lands and waters and the areas taken by the Army Corps of Engineers for two flood control projects. Approximately 56,634 acres, or roughly one-quarter of the total Reservation land, is deeded land held in fee by either members or nonmembers of the Tribe. Under the Indian General Allotment Act, 24 Stat. 388 (1887), significant portions of the Reservation were allotted to individual tribal members as part of Congress’s widespread attempt to" }, { "docid": "944953", "title": "", "text": "operate public park and recreational facilities in reservoir areas, which were to be open to the general public, subject to federal regulation. Subsequent Acts of Congress authorized limited takings of Indian lands for dams along the Missouri River. One such acquisition involved the Oahe Dam and Reservoir Project, for which the Congress required the Cheyenne River Sioux Tribe to relinquish 104,200 acres of its reservation land. Although the tribe conveyed all of its interest in the 104,200 acres, the Act reserved certain rights to the Tribe, including the right to have “without cost, the right of free access to the shoreline of the reservoir including the right to hunt and fish in and on the aforesaid shoreline and reservoir, subject, however, to regulations governing the corresponding use by other citizens of the United States.” Id. at —, 113 S.Ct. at 2314 (quoting Cheyenne River Act of 1954, 68 Stat. 1191, 1193). In its complaint, South Dakota sought to enjoin the Tribe from excluding non-Indians from hunting on non-trust land within the reservation. In the alternative, South Dakota sought a declaration that the federal takings of the tribal lands for the Oahe Dam and Reservoir had reduced the Tribe’s authority by withdrawing these lands from the reservation. The Court initially noted that because the tribes originally possessed the unqualified right of “absolute and undisturbed use and occupation” of the reservation land, the tribes had “both the greater power to exclude non-Indians from, and arguably the lesser-included, incidental power to regulate non-Indian use of, the lands later taken for the Oahe Dam and Reservoir Project.” Id. at —, 113 S.Ct. at 2316. Under the prior rulings in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) and Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989), the Court held that when tribal lands are conveyed to non-Indians, the tribes lose any former right of absolute and exclusive use and occupation of the conveyed lands. Bourland, — U.S. at —, 113 S.Ct. at 2316. “The abrogation of" }, { "docid": "16723556", "title": "", "text": "(citations omitted). Of course, tribal sovereignty is not absolute. In particular, the power to regulate generally the conduct of nonmembers on land no longer owned by or held in trust for the tribe is impliedly withdrawn as a necessary result of tribal dependent status. Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 1257, 67 L.Ed.2d 493 (1981); see United States v. Wheeler, 435 U.S. 313, 326, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978). Some exceptions to this implied withdrawal of tribal regulatory authority do exist. A tribe may regulate, through taxation, licensing or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements .... A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Montana v. United States, 450 U.S. at 565-66,101 S.Ct. at 1258-59 (citations omitted). This civil authority over non-Indians which the tribe retains, “derives not only from the tribe’s inherent power necessary to self-government and territorial management, but also from the power to exclude nonmembers from tribal land.” Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 592 (9th Cir.1983). See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 141-44, 102 S.Ct. 894, 903-05, 71 L.Ed.2d 21 (1982). Recent case law has affirmed tribal exercise of civil jurisdiction over nonmembers. Where nonmembers have transacted business with the tribe or entered onto the tribal lands for other purposes, the Supreme Court has upheld the imposition of taxes or the assessment of special fees. See Merrion v. Jicarilla Apache Tribe (severance tax on non-Indian mining operation on reservation lands) and Montana v. United States (exclusion of nonmembers from hunting on tribal lands). Likewise, this circuit has upheld tribal economic, health and welfare regulations. See Cardin v. De La Cruz, 671 F.2d 363 (9th Cir.) (building, health and safety regulations applied to nonmember business located" }, { "docid": "3176010", "title": "", "text": "to transactions “‘occurring on trust lands and significantly involving a tribe or its members....’” Id. at 137, 102 S.Ct. at 901 (quoting Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152, 100 S.Ct. 2069, 2080-81, 65 L.Ed.2d 10 (1980)). Where, in contrast, the issue involves tribal attempts to regulate non-tribal members, the Supreme Court has often found that those attempts are not within the inherent self-governing powers of a tribe. Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), held that the Crow Indians did not have the power to regulate hunting and fishing by non-Indians on reservation lands owned by non-Indians. The Court said that the tribal “powers of self-government ____ involve only the relations among members of a tribe.” Id. at 564, 101 S.Ct. at 1257. Similarly, in Strate v. A-1 Contractors, — U.S. -, -, 117 S.Ct. 1404, 1409, 137 L.Ed.2d 661 (1997), the Court reaffirmed Montana’s holding that, in general, the inherent sovereign powers of a tribe “ ‘do not extend to the activities of nonmembers of the tribe.’ ” (quoting Montana, 450 U.S. at 565, 101 S.Ct. at 1258). The Court also noted that “tribes retain considerable control over nonmember conduct on tribal land.” Id. at -, 117 S.Ct. at 1413. Here, only tribal conduct is at issue. The legislative history and precedent thus reinforces our conclusion that this dispute involves an “internal tribal matter” and that, accordingly, no claim is stated under § 1983 or under Maine law. The judgment of the district court is affirmed. Costs to appellees. . The Narragansett tribe in Rhode Island is also governed by a Claims Settlement Act. See 25 U.S.C. §§ 1701-06 (1978); Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908 (1st Cir.1996). . That section also provides certain immunities from suit. We do not reach the issue of immunity- . The Settlement Act at 25 U.S.C. § 1735(a) recites that in the event of any conflict between that Act and the Maine Implementing Act, the federal statute prevails. . While Akins may view a tribal court" }, { "docid": "6216785", "title": "", "text": "over persons not members of the tribe, and thus reduce to a nullity the Supreme Court’s repeated assertions that Indian tribes retain attributes of sovereignty over their territory, not just their members. Furthermore, tribal civil and regulatory jurisdiction over non-Indians has been explicitly approved in various contexts. In Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), the Court held that tribal courts had exclusive jurisdiction over a civil suit by a non-Indian against reservation Indians arising out of a transaction on the reservation. In Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 152-54, 100 S.Ct. 2069, 2080-81, 65 L.Ed.2d 1172 (1980), reservation Indians were held to have the power to tax non-Indian purchasers of goods on the reservation. And a tribal severance tax on oil and gas extracted by non-Indians from leased reservation land was upheld in Merrion v. Jicarilla Apache Tribe,-U.S.-, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982). The instant case does differ from those just cited in that here the Tribe seeks to regulate a non-Indian’s activities on land which, though within the reservation’s borders, is owned in fee by the non-Indian. As this circuit has observed, the Supreme Court’s decision in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), established that the dependent status of Indian tribes has implicitly divested them of power to regulate, in general, “the conduct of non-members on land no longer owned by, or held in trust for the Tribes.” Colville Confederated Tribe v. Walton, 647 F.2d 42, 52 (9th Cir. 1981). Yet the Montana decision acknowledged that the tribes have retained the power to impose certain kinds of regulations on the activities of a non-member on fee lands within their reservations: To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or" }, { "docid": "2598813", "title": "", "text": "on the taken land, we are required to pick up where we left off in Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809 (8th Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 707, 79 L.Ed.2d 171 (1984): we now must determine “whether the Tribe ... has jurisdiction to regulate hunting and fishing by nonmembers of the Tribe within the ... tak[en] areas.” Id. at 825 n. 23. Although Lower Brule left this question open, it decided other issues important to our inquiry. First, it seems clear from Lower Brule that the Cheyenne River Act did not disestablish the boundaries of the Reservation. Cf. id. at 821 (holding that two sister taking acts, with language similar to that used in the Cheyenne River Act, did not disestablish reservation boundaries). Lower Brule also held that the taking acts did not abrogate the hunting and fishing rights guaranteed to the Sioux tribes in the Fort Laramie Treaty. Id. at 826-27. Thus the Sioux retain their right to hunt and fish on their reservation free from state regulation. Id. at 827. From that apparent simplicity, however, regulatory complexity lingers. On the one hand, the right of the Tribe to regulate non-Indian hunting and fishing on fee land acquired by non-Indians pursuant to the allotment policy has been abrogated by Congress. Montana, 450 U.S. at 559, 101 S.Ct. at 1255. On the other hand, the Tribe retains regulatory authority over non-Indian hunting and fishing on land held in trust for the Tribe by the United States. New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 330, 103 S.Ct. 2378, 2384, 76 L.Ed.2d 611 (1983); Montana, 450 U.S. at 557, 101 S.Ct. at 1254. The taken area, however, is neither non-Indian-owned fee land nor trust land. In determining the scope of the Tribe’s regulatory power over this land, we must use the approach followed by the Supreme Court and by our Court in Lower Brule: tribal rights are abrogated only if Congress “has clearly expressed its intent to do so,” keeping in mind that “doubtful expressions of intent must be resolved in favor of" }, { "docid": "23057932", "title": "", "text": "Indian Nation v. County of Oneida, 414 U. S. 661, 667-668 (1974), cannot enter directly into commercial or governmental relations with foreign nations, Worcester v. Georgia, 6 Pet. 515, 559 (1832), and cannot exercise criminal jurisdiction over non-Indians in tribal courts, Oliphant, supra, at 195. This list is by no means exclusive, as Montana makes clear. In Montana, the Crow Tribe sought to prohibit hunting and fishing within its reservation by anyone not a member of the Tribe. The Court held that the Tribe’s inherent sovereignty did not support extending the prohibition on hunting and fishing to fee lands owned by non-Indians. It recognized the general principle that the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.” 450 U. S., at 564. Because regulation of hunting and fishing on fee lands owned by nonmembers of the Tribe did not bear any “clear relationship to tribal self-government or internal relations,” ibid., this general principle precluded extension of tribal jurisdiction to the fee lands at issue. The Yakima Nation contends that the Court’s insistence in Montana on an express congressional delegation of tribal power over nonmembers is inconsistent with language in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 153 (1980), that tribal powers are divested by implication only when “the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government.” We do not see this language as inconsistent with Montana. As the opinion in Colville made clear, that case involved “[t]he power to tax transactions occurring on trust lands and significantly involving a tribe or its members.” 447 U. S., at 152. It did not involve the regulation of fee lands, as did Montana. Moreover, the Court in Montana itself reconciled the two cases, citing Colville as an example of the sort of “consensual relationship” that might even support tribal authority over nonmembers on fee lands. 450 U. S., at 565-566. Justice Blackmun takes a slightly" }, { "docid": "17126078", "title": "", "text": "the court recognized that the Supreme Court has authorized exactly this kind of “checkerboard” jurisdiction by mandating that neighboring lands be subject to different regulatory authorities. Lower Brule III, 917 F.Supp. at 1448 (citing Bourland II, 949 F.2d at 996). We hold that the district court did not err in its determination that the Tribe failed to establish sufficient evidence to prevent summary judgment on the jurisdictional issue over nonmember-owned fee lands and waters. We also find no error in the court’s conclusion that no principles of federal Indian law preclude the State from lawfully exercising jurisdiction over nonmembers on the fee lands and waters at issue. We hasten to add, however, that the Tribe may seek relief in the district court in the future if circumstances change in kind or degree so as to directly affect or threaten the political integrity, economic security, or health and welfare of the Tribe as a whole. See Bourland IV, 39 F.3d at 871. B. Taken Lands Also at issue is jurisdiction over hunting and fishing by nonmembers on lands and waters located in the Fort Randall and Big Bend taken areas within the boundaries of the Reservation. The district court held that Congress’s exercise of eminent domain abrogated the Tube’s treaty rights and that the Tribe’s inherent sovereignty does not extend to the regulation of hunting and fishing by nonmembers in the taken areas. As the Supreme Court explains, “regardless of whether land is conveyed pursuant to an Act of Congress for homesteading or for flood control purposes, when Congress has broadly opened up such land to non-Indians, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory control.” Bourland III, 508 U.S. at 692, 113 S.Ct. at 2318 (footnote omitted). Thus, it is necessary to look to the language of the Acts which effectuated the takings. Section 1 of the Fort Randall Taking Act, Pub.L. No. 85-923, 72 Stat. 1773, provides that the payments by the United States to the Lower Brule Sioux Tribe were in “settlement of all claims, rights, and demands of said tribe.” Section" }, { "docid": "3176009", "title": "", "text": "non-Indian logging company challenged the applicability of state taxes to its exclusively on-reservation operations. The Court said that the tradition of Indian sovereignty over their reservations informed the determination that the exercise of state authority was preempted by federal law. The Court reviewed the “basic principles” established by its prior decisions regarding the “boundaries between state regulatory authority and tribal self-government.” Id. at 141, 100 S.Ct. at 2582. The Court emphasized the “significant geographical component to tribal sovereignty” and said that “though the reservation boundary is not absolute, it remains an important factor to weigh in determining whether state authority has exceeded the permissible limits.” Id. at 151, 100 S.Ct. at 2587. Similarly, in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982), the Court held that the tribe had the inherent authority to impose a severance tax on on-reservation mining activities as part of its power to be self-governing. This power derived from “the tribe’s general authority, as sovereign, to control economic activity within its jurisdiction” and extended to transactions “‘occurring on trust lands and significantly involving a tribe or its members....’” Id. at 137, 102 S.Ct. at 901 (quoting Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152, 100 S.Ct. 2069, 2080-81, 65 L.Ed.2d 10 (1980)). Where, in contrast, the issue involves tribal attempts to regulate non-tribal members, the Supreme Court has often found that those attempts are not within the inherent self-governing powers of a tribe. Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), held that the Crow Indians did not have the power to regulate hunting and fishing by non-Indians on reservation lands owned by non-Indians. The Court said that the tribal “powers of self-government ____ involve only the relations among members of a tribe.” Id. at 564, 101 S.Ct. at 1257. Similarly, in Strate v. A-1 Contractors, — U.S. -, -, 117 S.Ct. 1404, 1409, 137 L.Ed.2d 661 (1997), the Court reaffirmed Montana’s holding that, in general, the inherent sovereign powers of a tribe “ ‘do not extend to the" }, { "docid": "23478462", "title": "", "text": "all violators; the State limited its enforcement to non-Indians. In 1988, following a dispute between the State and the tribal respondents regarding the 1988 deer hunting season, the Tribe announced that it would no longer recognize state hunting licenses and that hunters within the reservation would be “subject to prosecution in tribal court” unless licensed by the Tribe. App. 58. In response, the State filed this action against the Chairman of the Cheyenne River Sioux Tribe and the Director of Cheyenne River Sioux Tribe Game, Fish and Parks. In its complaint, the State sought to enjoin the Tribe from excluding non-Indians from hunting on nontrust lands within the reservation. In the alternative, the State sought a declaration that the federal takings of tribal lands for the Oahe Dam and Reservoir had reduced the Tribe’s authority by withdrawing these lands from the reservation. Id., at 39-40 (Second Amended Complaint). The District Court concluded that the Cheyenne River Act “did not disestablish the Missouri River boundary of the Cheyenne River Reservation.” Id., at 103. Nevertheless, relying on Montana v. United States, 450 U. S. 544 (1981), the District Court held that § 10 of the Cheyenne River Act clearly abrogated the Tribe’s right to exclusive use and possession of the former trust lands. App. 125. The court further found that “Congress has not expressly delegated to the Tribe hunting and fishing jurisdiction over nonmembers” on the taken lands. Id., at 149. The District Court perma nently enjoined the Tribe and its members from exerting such authority. The Court of Appeals affirmed in part, reversed in part, and remanded. 949 F. 2d 984 (CA8 1991). The court distinguished between the 104,420 acres of former trust lands acquired pursuant to the Cheyenne River Act and the 18,000 acres of former non-Indian fee lands acquired pursuant to the Flood Control Act. As to the former trust lands, the court held that the Tribe had authority to regulate non-Indian hunting and fishing because the Cheyenne River Act did not clearly reveal Congress’ intent to divest the Tribe of its treaty right to do so. As to" }, { "docid": "17126063", "title": "", "text": "(8th Cir.1991), Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989) (plurality), and Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Following this line of authority, the district court granted the State’s motion for summary judgment. We agree that this result follows Supreme Court precedent and affirm. I. This ease began over sixteen years ago when the Tribe sought to enjoin the State from enforcing its fish and wildlife regulations on fee lands and taken lands within the boundaries of the Reservation and to obtain a declaratory judgment that the Tribe has exclusive regulatory jurisdiction over hunting and fishing by any person within Reservation boundaries. In the first phase of the litigation, the district court reserved ruling on matters pertaining to fee lands. With respect to lands taken by the Army Corps of Engineers for flood control projects at Fort Randall and Big Bend, the court held that the respective taking acts diminished the Reservation thereby divesting the Tribe of jurisdiction over even tribal members on those lands. Lower Brule Sioux Tribe v. South Dakota (“Lower Brule I”), 540 F.Supp. 276, 292 (D.S.D.1982). Our court reversed, holding that the Tribe had exclusive jurisdiction to regulate hunting and fishing by tribal members in the taken areas and remanding for reconsideration of who has jurisdiction to regulate hunting and fishing by nonmembers within the Fort Randall and Big Bend taken areas. Lower Brule Sioux Tribe v. South Dakota (“Lower Brule II”), 711 F.2d 809, 813, 827 (8th Cir.1983). Before trial, however, the Tribe and the State entered into a five-year cooperation agreement. Unfortunately, this agreement was not renewed; and when it expired on October 24, 1991, the Tribe brought this action to enjoin the State from enforcing its hunting and fishing laws over any person on fee lands and taken lands within the boundaries of the Reservation and to bar the State from attempting to regulate hunting and fishing on those lands in the future. The district court entered a preliminary injunction against the" }, { "docid": "12405048", "title": "", "text": "BRUNETTI, Circuit Judge: The Crow Tribe (“Tribe”) enacted the Railroad and Utility Tax Code (“RUTC”), which assesses a 3% tax on the full fair market value of all “utility property” located on tribal or trust lands within the exterior boundaries of the Crow Reservation (“Reservation”). Big Horn Electric Cooperative (“Big Horn”) filed an action in federal district court against several tribal officials for injunctive and declaratory relief, contending that the Tribe exceeded its regulatory jurisdiction in placing an ad valorem tax on the value of Big Horn’s utility property. The tribal officials appeal the district court’s grant of summary judgment to Big Horn. They argue that the Tribe’s inherent sovereign authority justifies the imposition of the tax. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part. I. The Reservation, located in Southern Montana, was established by the 1868 Treaty of Fort Laramie (“Treaty”) between the Tribe and the United States. See Second Treaty of Fort Laramie, May 7, 1868, 15 Stat. 649 (1868). Although the Treaty originally granted the Tribe 8 million acres of land, see id., several subse quent Acts of Congress reduced the total area of the Reservation to slightly under 2.3 million acres. See Montana v. United States, 450 U.S. 544, 548, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). There is a checkerboard pattern of land ownership on the Reservation composed of fee land owned by non-Indians and members of the Tribe and trust land held by the United States in trust for the Tribe. See The Indian General Allotment Act of 1887, Feb. 8, 1887, 24 Stat. 388; Crow Allotment Act of 1920, 41 Stat. 751; see also Montana, 450 U.S. at 548, 101 S.Ct. 1245 (discussing the apportionment of land on the Crow Reservation). In 1993, the Crow Tribal Council adopted a resolution authorizing the implementation of RUTC, which assesses a 3% tax on the full fair market value of all “utility property” located on tribal or trust lands within the exterior boundaries of the Reservation. According to § 202(H) of RUTC, the term “utility property” includes:" }, { "docid": "18272501", "title": "", "text": "remediable at law, a necessary foundation of federal injunctive relief, are nearly six years old. No hard evidence of an immediate threat of irreparable injury to the Tribe at the hands of the defendants appears in the present record. Nor should evidence of such a grave threat arise. Two of the jurisdictional issues most important to the parties, tribal criminal jurisdiction over non-Indians and tribal regulation of non-Indian hunting and fishing off of tribal lands, have already been resolved by the United States Supreme Court. In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), the Court held that the Indian tribes do not have inherent power to try and punish non-Indians for criminal offenses. In Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), the Court restricted tribal control of hunting and fishing to Indian-owned and Indian trust lands. Of course, an expansive reservoir of sovereign tribal authority remains intact. See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). The scope of tribal civil jurisdiction over non-Indians within Indian country was expressed in Montana v. United States, supra, by Justice Stewart: To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Williams v. Lee, 358 U.S. 217, 223 [79 S.Ct. 269, 272, 3 L.Ed.2d 251]; Morris v. Hitchcock, 194 U.S. 384 [24 S.Ct. 712, 48 L.Ed. 1030]; Buster v. Wright, 135 F.2d 947, 950 (CA8); see Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, [100 S.Ct. 2069, 65 L.Ed.2d 10]. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct" }, { "docid": "6609157", "title": "", "text": "others from tribal lands, and, to some extent, to exercise civil jurisdiction over nonmembers, including non-Indians. See Cohen, HANDBOOK of FedeRal Indian Law, at 247-53; Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). It is this last category of power that is at issue in the instant case, because petitioners claim that the 1990 Amendments to the Act do not authorize tribes to administer the Act over fee land within a reservation that is owned by nonmembers. As the Supreme Court has held, exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. Montana, 450 U.S. at 564, 101 S.Ct. 1245. There is no doubt that tribes hold “inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands.” Id. at 565, 101 S.Ct. 1245. For instance, if the behavior of non-Indians on fee lands within the reservation “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe,” the tribe may regulate that activity. Id. at 566, 101 S.Ct. 1245. To satisfy this standard, however, a tribe must show, on a case-by-case basis, that the disputed activity constitutes a “demonstrably serious” impact that “imperil[s] the political integrity, the economic security, or the health and welfare of the tribe.” Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408, 431, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989) (plurality opinion). EPA suggests, not implausibly, that “inherent sovereign power” may apply to tribal regulation under the Act of fee lands within a reservation, see Proposed Tribal Authority Rule, 59 Fed. Reg. at 43,598 n.5, but the Agency does not press this argument on appeal. Rather, EPA contends that the 1990 Amendments constitute an express congressional delegation to the tribes of the authority to regulate air quality on fee lands located within the exterior boundaries of a reservation. “There" }, { "docid": "17126080", "title": "", "text": "1 of the Big Bend Taking Act, Pub.L. No. 87-734, 76 Stat. 698, is almost identical. Both provisions indicate that there was a mutual understanding between the United States and the Tribe that the Acts set forth all of the terms of the transaction and all the rights the Tribe would retain under the agreements. Section 5 of the Fort Randall Taking Act explicitly provides that the Tribe retains two rights, without cost: first, to graze livestock and, second, to hunt and fish in the taken area subject to the regulations governing the corresponding use of the land by other United States citizens. Similarly, Section 10 of the Big Bend Taking Act reserves for the Tribe and its individual members the right to hunt and fish on the taken area subject to the laws applicable to other citizens doing the same. The provisions set out above are almost identical to Sections 2 and 10 of the Cheyenne River Act, 68 Stat. 1191 (1954) (taking land for the Oahe Dam and Reservoir project in furtherance of the Flood Control Act of 1944), construed by the Supreme Court in Bourland III. In that case the Court concluded, “Congress, through the Flood Control and Cheyenne River Acts eliminated the Tribe’s power to exclude non-Indians from these lands, and with that the incidental regulatory jurisdiction formerly enjoyed by the Tribe [pursuant to the Fort Laramie Treaty of 1868].” Bourland III, 508 U.S. at 689, 113 S.Ct. at 2316-17. Similarly, the Fort Randall and Big Bend Taking Acts must be construed to deprive the Tribe of any treaty right to regulate nonmember hunting and fishing in the taken areas. Thus, the district court correctly reached this conclusion. The Tribe does not challenge the court’s conclusion as to extinguishment of treaty rights so much as it asserts that only the federal government, not the State, has jurisdiction to regulate nonmembers’ activities in the taken areas. It is clear that Congress provided the Army Corps of Engineers with the regulatory control over the taken areas. 16 U.S.C. § 460d; see also Bourland III, 508 U.S. at 690," }, { "docid": "13974897", "title": "", "text": "Reservation. We accepted as correct the following statement made by the Supreme Court of Montana in State v. Danielson, 149 Mont. 438, 427 P.2d 689, 692-93 (1967): [T]he State of Montana has jurisdiction to enforce its fish and game regulations on Indian reservations contained within its boundaries with respect to persons who are not tribal Indians unless precluded from doing so by an act of Congress or unless such enforcement would interfere with self-government on the reservation. Our task is to adjust the powers of the Crow Tribe and the State of Montana in a manner consistent with these authorities. We lack the power to alter them even if we wished to do so. We approach this task convinced that the preservation and improvement of the stocks of fish and game within the State of Montana, as well as the Crow Reservation, requires the cooperation of the United States, the State of Montana, and the Crow Tribe. The nature of this cooperation cannot be fixed by reference to the contributions made in the past by each of the three to fish and game conservation. Rather it must rest on the above authorities and be shaped by the best judgment of which we and all parties to this lawsuit are capable. So guided, our holdings, as previously indicated, are as follows. The Crow Tribe, to the extent it permits hunting and fishing within the exterior limits of its reservation by non-members, must regulate such hunting and fishing in the manner prescribed in Quechan Tribe of Indians v. Rowe. That is, the Tribe may fix the seasons and limits with respect to each species of game or fish applicable to non-member hunting and fishing as it sees fit. Enforcement of these regulations, however, must be accomplished without subjecting non-Indians to the criminal jurisdiction of the tribal courts. Forfeiture of the arms or other property of non-Indians under Quechan constitutes an impermissible criminal sanction. All other actions by tribal officials sanctioned by Quechan are available to aid the Tribe in enforcing its regulations. Fees, for example, may be imposed on non-members by the" }, { "docid": "17126064", "title": "", "text": "the Tribe of jurisdiction over even tribal members on those lands. Lower Brule Sioux Tribe v. South Dakota (“Lower Brule I”), 540 F.Supp. 276, 292 (D.S.D.1982). Our court reversed, holding that the Tribe had exclusive jurisdiction to regulate hunting and fishing by tribal members in the taken areas and remanding for reconsideration of who has jurisdiction to regulate hunting and fishing by nonmembers within the Fort Randall and Big Bend taken areas. Lower Brule Sioux Tribe v. South Dakota (“Lower Brule II”), 711 F.2d 809, 813, 827 (8th Cir.1983). Before trial, however, the Tribe and the State entered into a five-year cooperation agreement. Unfortunately, this agreement was not renewed; and when it expired on October 24, 1991, the Tribe brought this action to enjoin the State from enforcing its hunting and fishing laws over any person on fee lands and taken lands within the boundaries of the Reservation and to bar the State from attempting to regulate hunting and fishing on those lands in the future. The district court entered a preliminary injunction against the State on November 13, 1991, in effect, continuing the terms of the expired five-year agreement between the parties. After extensive discovery by both sides, the State filed a motion for summary judgment on September 11, 1995. On February 8, 1996, after the Tribe filed .its second response to the motion, the district court granted the State’s motion for summary judgment. Lower Brule Sioux Tribe v. South Dakota (“Lower Brule III”), 917 F.Supp. 1434, 1457 (D.S.D.1996). Applying the analytical framework of Montana, Bourland III, and Brendale, the court held (1) Congress has abrogated any treaty rights that provided the Tribe with the authority to regulate hunting and fishing by nonmembers on both fee lands and waters and in the taken areas; (2) the Tribe’s inherent sovereignty does not extend to the regulation of hunting and fishing by nonmembers on fee or taken lands either by virtue of a consensual relationship with the Tribe or because of a threat to the political integrity, economic security, or health and welfare of the Tribe; and (3) the State has" }, { "docid": "13974896", "title": "", "text": "or fish. These are the rights to determine who may enter the reservation; to define the conditions upon which they may enter; to prescribe rules of conduct; to expel those who enter the reservation without proper authority or those who violate tribal, state or federal laws; to refer those who violate state or federal laws to state or federal officials; and to designate officials responsible for effectuating the foregoing. 531 F.2d at 411. Also, after denying that the Quechan Tribe had authority to assert criminal jurisdiction over non-members who violate tribal law while on the reservation, we further held the Tribe could not cause a forfeiture of a non-member’s weapons or other property as a consequence of violating tribal law. The second occasion was in United States v. Sanford, 547 F.2d 1085 (9th Cir. 1976), a case pertaining to hunting by non-members of the Crow Tribe on the Crow Reservation. We held that on the basis of the record before us Montana game laws were applicable to hunting and fishing by non-members on the Crow Reservation. We accepted as correct the following statement made by the Supreme Court of Montana in State v. Danielson, 149 Mont. 438, 427 P.2d 689, 692-93 (1967): [T]he State of Montana has jurisdiction to enforce its fish and game regulations on Indian reservations contained within its boundaries with respect to persons who are not tribal Indians unless precluded from doing so by an act of Congress or unless such enforcement would interfere with self-government on the reservation. Our task is to adjust the powers of the Crow Tribe and the State of Montana in a manner consistent with these authorities. We lack the power to alter them even if we wished to do so. We approach this task convinced that the preservation and improvement of the stocks of fish and game within the State of Montana, as well as the Crow Reservation, requires the cooperation of the United States, the State of Montana, and the Crow Tribe. The nature of this cooperation cannot be fixed by reference to the contributions made in the past by" } ]

[ { "docid": "7750236", "title": "", "text": "its discretion in denying his claim on the ground that his disability was due to a pre-existing condition and was of insufficient duration to trigger coverage. We therefore reverse the summary judgment on that issue, and remand for further proceedings in the event that trial of the first issue leads to a conclusion that ERISA applies. II ERISA broadly preempts state law that relates to “any employee benefit plan” as described in the statute. 29 U.S.C. § 1144(a); see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Insofar as relevant to this case, an employee welfare benefit plan is a plan, fund or program “established or maintained by an employer” to provide benefits in the event of illness, disability or certain other conditions. 29 U.S.C. § 1002(1)(A). “[T]he existence of an ERISA plan is a question of fact, to be answered in the light of all the surrounding circumstances from the point of view of a reasonable person.” Credit Managers Ass’n v. Kennesaw Life & Acc. Ins. Co., 809 F.2d 617, 625 (9th Cir.1987) (emphasis added). To aid in the determination, the Secretary of Labor has issued an interpretive regulation that creates for certain employer practices a “safe harbor” from ERISA coverage. In pertinent part, the regulation provides: [T]he terms “employee welfare benefit plan” and “welfare plan” shall not include a group or group-type insurance program offered by an insurer to employees ..., under which (1) No contributions are made by an employer ...; (2) Participation [in] the program is completely voluntary for employees ...; (3) The sole functions of the employer ... with respect to the program are, without endorsing the program, to permit the insurer to publicize the program to employees ..., to collect premiums through payroll deductions ... and to remit them to the insurer; and (4) The employer ... receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions .... 29 C.F.R. § 2510.3-1(3). There" } ]

[ { "docid": "7833759", "title": "", "text": "law was also intended to safeguard employers’ interests by “eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans.” Shaw, 463 U.S. at 99, 103 S.Ct. 2890 (quoting 120 Cong. Rec. 29197, 29933 (1974)) (internal quotation marks omitted). In support of this second goal, ERISA provided for the preemption of all state law causes of action “insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). ERISA preemption analysis thus involves two central questions: (1) whether the plan at issue is an “employee benefit plan” and (2) whether the cause of action “relates to” this employee benefit plan. See Rosario-Cordero v. Crowley Towing & Transp. Co., 46 F.3d 120, 124 (1st Cir.1995). i. Payroll Practice or Employee Welfare Benefit Plan ERISA defines “employee benefit plans” to include both “employee pension benefit plans” and “employee welfare benefit plans.” 29 U.S.C. § 1002(3). It defines an “employee welfare benefit plan” further as: any plan, fund, or program which ... is ... established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, [or] death.... 29 U.S.C. § 1002(1). “The question of whether an ERISA plan exists is ‘a question of fact, to be answered in light of all the surrounding facts and circumstances from the point of view of a reasonable person.’ ” Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1082 (1st Cir.1990) (citing Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988)). Digital’s short-term disability plans clearly fell within this definition in § 1002(1). However, not all plans that fall within the literal definition in § 1002(1) are included within the scope of ERISA. Regulations promulgated by the Secretary of Labor provide that the term “employee welfare benefit plan” excludes certain" }, { "docid": "10425677", "title": "", "text": "1002(1) defines “employee welfare benefit plan” as any plan, fund, or program which ... is ... established or maintained by an employer ... for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment. ... See Silvera, 884 F.2d at 425; Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per curiam) (as amended). We agree with the District Court that Picture Perfect established a plan to help Dale Crull obtain health insurance, and that this plan constitutes an ERISA “employee welfare benefit plan.” The Crulls disagree. They point out that a plan is an ERISA “employee benefit plan” only if it is “established or maintained by an employer or by an employee organization, or both.” With that we agree. The Crulls then argue that IMET is not a statutory “employer” or “employee organization.” See 29 U.S.C. §§ 1002(4), 1002(5). We have held that a multiple employer trust comprised of heterogenous, unrelated employers is not an ERISA employer. Credit Managers Ass’n v. Kennesaw Life & Acc. Ins., 809 F.2d 617, 625 (9th Cir.1987). We need not resolve IMET’s status as an “employer” under ERISA, however. IMET’s status is not dispositive so long as Picture Perfect qualifies as an ERISA employer. This observation sets up the Crulls’ second argument. They argue that Picture Perfect is not an employer for purposes of ERISA regulation because Picture Perfect merely arranged for a group-type insurance program for its employees. As authority, they cite Taggart Corp. v. Life & Health Benefits Admin., 617 F.2d 1208 (5th Cir.1980), which held that ERISA does not regulate “bare purchases of health insurance where ... the purchasing employer neither directly nor indirectly owns, controls, administers or assumes responsibility for the policy or its benefits.” 617 F.2d at 1211. We have held, however, that “[e]ven if an employer does no more than arrange for a ‘group-type insurance program,’ it can establish an ERISA plan, unless it is a mere" }, { "docid": "9959448", "title": "", "text": "Employee Welfare Benefit Plan Section 514 provides that ERISA: shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan [covered by the statute].... State claims relating to employee benefit plans are preempted by ERISA. Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 521-526, 101 S.Ct. 1895, 1905-1908, 68 L.Ed.2d 402 (1981); Cooke v. Lynn & Sand Stone Co., 673 F.Supp. 14, 28 (D.Mass. 1986); see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987); Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 145 (2d Cir.), cert. denied, — U.S. --, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989). At issue is whether plaintiffs’ policy is part of an ERISA plan. An “employee welfare benefit plan” is defined as: (1) a ‘plan, fund, or program’ (2) established or maintained (3) by an employer or by an employer organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness ... (5) to the participants or their beneficiaries. Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (en banc), cert. denied, — U.S.-, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989), citing Donovan v. Dillingham,, 688 F.2d 1367, 1371 (11th Cir.1982) (en banc). “[A] plan, fund or program under ERISA, is established if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.” Donovan, 688 F.2d at 1373. Thus, the existence of an ERISA plan is to be determined by the surrounding facts and circumstances. Id. The Department of Labor has issued regulations which exclude certain insurance programs from ERISA’s definition of “employee welfare benefit plan” if one or more of the criteria are met: (j) Certain group or group-type insurance programs. For purposes of Title I of the Act and this chapter, the terms “employee welfare benefit plan” and “welfare plan” shall not include a group or group-type insurance program offered by an insurer to employees or members of an employee" }, { "docid": "14594492", "title": "", "text": "contends that the UHBT plan is an ERISA plan because it was established and is maintained by the employers who participate in the plan. The Commissioner contends that UHBT is not an ERISA employee welfare benefit plan and instead is an unauthorized insurer offering and market ing health benefits in the State of California. Moideen is correct that if UHBT is an ERISA plan, UHBT cannot be deemed to be an insurance company; California’s regulations will be preempted. 29 U.S.C. § 1144(b)(2)(B); FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407-08, 112 L.Ed.2d 356 (1990). On the other hand, if UHBT is not an ERISA plan, nothing in ERISA prevents it from being subject to the entire California Insurance Code. An ERISA “employee welfare benefit plan” is: (1) a plan, fund or program (2) established or maintained (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, prepaid legal services or severance benefits (5) to the participants or their beneficiaries. Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (internal quotations omitted), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). See also 29 U.S.C. § 1002(1). An “employer” is “any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity.” 29 U.S.C. § 1002(5) (emphasis added). Of course, any number of insurance-type arrangements involving employers as participants might claim exemption from state insurance requirements if this language were very broadly interpreted. To avoid that result, and confine ERISA preemption to the types of employer-employee benefit plans thought to be in the contemplation of Congress in enacting ERISA, the Department of Labor has interpreted section 1002(5) to encompass a requirement of bona fide “organizational relationship” among the members other than a mere association for" }, { "docid": "2043476", "title": "", "text": "case turns solely on the question whether ERISA governs the MONY insurance plan provided by City to its employees. In order to answer that question, we must determine whether the district court was correct in its conclusion that the MONY plan was not a “governmental plan.” ERISA was enacted to protect, inter alia, “the interests of participants in employee benefit plans and their beneficiaries.” 29 U.S.C. § 1001(b). “Employee benefit plans” are either “employee welfare benefit plans” or “employee pension benefit plans” or both. Massachusetts v. Morash, — U.S. -, 109 S.Ct. 1668, 1672, 104 L.Ed.2d 98 (1989). An employee welfare benefit plan, which is at issue here, is defined as any plan, fund, or program which ... is ... established or maintained by an employer ... for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment.... 29 U.S.C. § 1002(1). These plans consist of five elements: (1) a “plan, fund or program” (2) established or maintained (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, prepaid legal services or severance benefits (5) to the participants or their beneficiaries. Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per cu-riam) (as amended) (quoting Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir.1982) (en banc)). In order to provide the widest possible protection to all such plans, ERISA contains a preemption clause which states, in relevant part, that “this chapter shall supersede any and all State laws insofar as they ... relate to any employee benefit plan....” 29 U.S.C. § 1144(a). The Supreme Court has indicated that ERISA’s preemption of state laws should be construed broadly, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46, 107 S.Ct. 1549, 1551-52, 95 L.Ed.2d 39 (1987), and this court has" }, { "docid": "22195583", "title": "", "text": "or (3) both. 29 U.S.C. § 1003(a). The question of whether an ERISA plan exists is “a question of fact, to be answered in light of all the surrounding facts and circumstances from the point of view of a reasonable person.” Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). In a cursory fashion, the statute defines an employee benefit plan as “an employee welfare benefit plan or an employee pension benefit plan or a plan which is both an employee welfare benefit plan and an employee pension benefit plan.” 29 U.S.C. § 1002(3). As one court has noted, a welfare benefit plan under ERISA requires five essential constituents: (1) a plan, fund or program (2) established or maintained (3) by an employer or by an employee organization, or by both (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, prepaid legal services or severance benefits (5) to participants or their beneficiaries. Donovan v. Dillingham, 688 F.2d 1367, 1370 (11th Cir.1982) (en banc). There is no dispute that the last three prerequisites were met in this case. The real dispute is whether this is a plan which the employer “established or maintained.” The court in Donovan also formulated the prevailing standard for determining whether a plan has been established. In summary, a “plan, fund or program” under ERISA is established if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits. Id. at 1373. As the magistrate points out, this test is easily met in this case and the plaintiff-widow never contests that the intended benefits were accident insurance benefits. The beneficiaries were full-time employees and their appointed beneficiaries. Dexter, the employer, financed the plan and possibly also employee contributions. Dexter fixed a formal claim procedure, which the widow in fact used. The plaintiff contends, though, that to be a plan" }, { "docid": "22195582", "title": "", "text": "supersedes any and all state law, except for state insurance, banking, and securities regulation. Under this section, a claimant’s common law contract and torts claims asserting the improper processing of a claim for benefits under an ERISA regulated insurance policy are pre-empted. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 57, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987). Insurance coverage which is part of an ERISA plan is regulated under ERISA. See id. at 48, 107 S.Ct. at 1553. The magistrate, finding that the AD & D policy at issue here was part of an ERISA plan, held that the widow’s claims were limited to those under ERISA. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 62-63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987). ERISA applies to: any employee benefit plan if it is established or maintained— (1) by any employer engaged in commerce or actively affecting commerce; or (2) by any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or (3) both. 29 U.S.C. § 1003(a). The question of whether an ERISA plan exists is “a question of fact, to be answered in light of all the surrounding facts and circumstances from the point of view of a reasonable person.” Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). In a cursory fashion, the statute defines an employee benefit plan as “an employee welfare benefit plan or an employee pension benefit plan or a plan which is both an employee welfare benefit plan and an employee pension benefit plan.” 29 U.S.C. § 1002(3). As one court has noted, a welfare benefit plan under ERISA requires five essential constituents: (1) a plan, fund or program (2) established or maintained (3) by an employer or by an employee organization, or by both (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, prepaid" }, { "docid": "7304120", "title": "", "text": "enacted to protect the participants and beneficiaries of employee benefit plans. 29 U.S.C. § 1001(b). Section 1132(a)(1)(B) states that a civil action may be brought by a plan beneficiary “to recover benefits due to him under the terms of the 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.” Section 1132(e) gives federal district courts jurisdiction over such actions. The Supreme Court has held that ERISA preempts state common law claims involving the processing of employee benefits. See Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 56-57, 107 S.Ct. 1549, 1557-58, 95 L.Ed.2d 39 (1987). ERISA applies to any employee benefit plan if it is established or maintained by an employer or an employee organization engaged in commerce or in any industry or activity affecting commerce. 29 U.S.C. § 1003(a); Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 240 (5th Cir.1990). ERISA regulates two distinct types of benefit programs that may be offered to employees: pension plans and welfare plans. Id. Section 3(1) of ERISA, the definitional section, includes among “employee welfare benefit plans” any plan established by an employer that provides benefits in the event of unemployment. See 29 U.S.C. § 1002(1). Although the Fifth Circuit has not spoken directly to this issue, many federal courts have specifically recognized that an employer’s provisions for severance pay are “employee welfare benefit plans” under ERISA. See, e.g., Wickman v. Northwestern Nat. Ins. Co., 908 F.2d 1077, 1082 (1st Cir.1990); Wallace v. Firestone Tire & Rubber Co., 882 F.2d 1327, 1329 (8th Cir.1989); Pane v. RCA Corp., 868 F.2d 631, 635 (3rd Cir.1989). Since El Paso’s severance pay plan has as its purpose the providing of financial assistance to employees whose jobs are abolished, it is clearly an employee welfare benefit plan within the meaning of ERISA. See Holland v. Burlington Indus. Inc., 772 F.2d 1140, 1146 (4th Cir.1985), aff'd sub nom., Brooks v. Burlington Indus. Inc., 477 U.S. 901, 106 S.Ct. 3267, 91 L.Ed.2d 559 (1986). Guzman’s claim for breach of" }, { "docid": "6619675", "title": "", "text": "distress, and punitive damages would be preempted. See 29 U.S.C. § 1144(a) (ERISA preempts state law relating to an ERISA plan); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52, 57, 107 S.Ct. 1549, 1555-56, 1558, 95 L.Ed.2d 39 (1987) (ERISA preempts state law actions for improper processing of claims); Settles v. Golden Rule Ins. Co., 927 F.2d 505, 508 (10th Cir.1991) (same). Thus we must determine whether AAA’s provision of Gem insurance for AAA employees— and therefore Ms. Peckham’s policy with GEM — is covered by ERISA. We review this question de novo. ERISA governs “employee benefit plan[s].” 29 U.S.C. § 1003(a). One form of employee benefit plan is an “employee welfare benefit plan.” Id. § 1002(3). As applicable to this case, an “employee welfare benefit plan” is any plan, fund, or program ... established or maintained by an employer ... for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance ... medical, surgical, or hospital care or benefits____ Id. § 1002(1). As noted by the Eleventh Circuit, this definition can be broken down into five elements: (1) a “plan, fund, or program” (2) established or maintained (3) by an employer ... (4) for the purpose of providing medical, surgical, [or] hospital care ... benefits ... (5) to participants or their beneficiaries. Donovan v. Dillingham, 688 F.2d 1367, 1371 (1982); see also Wickman v. Northwest Nat’l Ins. Co., 908 F.2d 1077, 1082 (1st Cir.) (adopting Donovan’s breakdown of the elements of § 1002(1)), cert. denied, — U.S. -, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990); Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 738 (7th Cir.1986) (same), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987). Elements (3), (4), and (5) of the above definition are clearly satisfied by Peck-ham’s policy with Gem and are not disputed. The policy was offered by an employer, AAA, for the purpose of providing medical care benefits to participants, its employees. This leaves elements (1) and (2). A. The “plan, fund, or program” requirement Element (1) is also satisfied." }, { "docid": "10370697", "title": "", "text": "as the parties removing an action to federal court, have the burden of establishing federal jurisdiction. Sullivan v. First Affiliated Secs., 813 F.2d 1368 (9th Cir.1987), cert. denied, 484 U.S. 850, 108 S.Ct. 150, 98 L.Ed.2d 106 (1987). Because the removal statutes are strictly construed against removal, generally speaking, all doubts about removal must be resolved in favor of remand. See Shamrock Oil and Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Butler v. Polk, 592 F.2d 1293 (5th Cir.1979); Paxton v. Weaver, 553 F.2d 936 (5th Cir. 1977). ERISA broadly preempts state law claims relating to employee benefit plans brought by ERISA participants and beneficiaries. 29 U.S.C. § 1144(a); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). The defendants assert that ERISA preempts plaintiffs state law claims because the claims “relate to” an employee benefit plan, i.e. Prudential’s “Employee Benefits Program” issued to Brech Marine & Supply. Plaintiff argues that ERISA does not preempt his cause of action because no employee benefit plan was established or, in the alternative, plaintiff is not a “participant” in an employee benefit plan and therefore, ERISA does not preempt this action. A. Did Brech Establish an Employee Benefit Plan for His Employees? To decide whether ERISA preempts plaintiffs state law claims, the court must first determine if an “employee benefit plan” was established as required for ERISA coverage. 29 U.S.C. § 1002(1) defines an “employee welfare benefit plan” as: any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such a plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services,.... 29 U.S.C. § 1002(1)." }, { "docid": "14565561", "title": "", "text": "S.Ct. 1549, 95 L.Ed.2d 39 (1987). ERISA preemption is “conspicuous for its breadth” — its “deliberately expansive language was designed to establish pension plan regulation as exclusively a federal concern.” Ingersoll Rand Co., 498 U.S. at 138, 111 S.Ct. 478 (internal quotations and citations omitted). “In particular, ERISA preempts state law causes of action that offer remedies for the violation of rights expressly guaranteed by ERISA and exclusively enforced by ERISA’s civil enforcement mechanism.” Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124, 1130 (9th Cir.1992). However, certain types of plans have been exempted from ERISA coverage. See 29 U.S.C. § 1003(b) (listing ERISA exemptions) 3.The ACWA Plan is an ERISA Plan The existence of an ERISA plan is a question of fact, to be answered in light of all the surrounding facts and circumstances from the point of view of a reasonable person. Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988). An ERISA “employee welfare benefit plan” is: (1) a plan, fund or program; (2) established or maintained; (3) by an employer or by an employee organization, or by both; (4) for the purpose of providing medical, surgical, hospital, or sickness benefits; (5) to participants or their beneficiaries. Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 917 (9th Cir.1997) (citations omitted); see also 29 U.S.C. § 1002(1). It is undisputed that the ACWA Plan is a plan established or maintained by ACWA for the purposes of providing medical benefits to Plan participants or their beneficiaries. Thus, the only issue is whether ACWA qualifies as an “employer” under ERISA. An “employer” is “any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity.” 29 U.S.C. § 1002(5). Not all groups or associations of employers qualify as ERISA “employers,” however. To be an “employer” under ERISA, there must be a bona fide organizational relationship among members of a group, and that relationship must be more than a mere" }, { "docid": "6092846", "title": "", "text": "the judge does not weigh conflicting evidence or make credibility determinations. These determinations are the province of the fact finder at trial. Id., see also Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 410 (9th Cir.1996) (on a motion for summary judgment, the court is not to weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial). STANDARDS FOR ERISA CASES ERISA governs all employee benefit plans. 29 U.S.C. § 1001 et seq. An “employee benefit plan” is defined as “an employee welfare benefit plan or an employee pension benefit plan or a plan which is both an employee welfare benefit plan and an employee pension benefit plan.” 29 U.S.C. § 1002(3). At issue in this case is whether plaintiffs option to purchase disability policies with defendant was a component of an “employee welfare benefit plan.” “ERISA defines an ‘employee benefit plan’ to include, among others, ‘any plan, fund, or program... established or maintained by an employer... for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance... medical, surgical, or hospital care or benefits’ ” in the event of sickness, accident, disability, death or unemployment. Stuart v. UNUM Life Ins. Co. of America, 217 F.3d 1145, 1153 (9th Cir.2000), quoting Qualls ex rel. Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 843 (9th Cir.1994) (ellipses in original) (quoting 29 U.S.C. §§ 1002(1), (3)); see also Crull v. GEM Ins. Co., 58 F.3d 1386, 1389 (9th Cir.1995); Silvera v. Mutual Life Ins. Co. of New York, 884 F.2d 423, 425 (9th Cir.1989); Kanne v. Conn. Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per curiam) (as amended). The existence of an ERISA plan is a factual question, to be answered from the point of view of a reasonable person. Zavora v. Paul Revere Life Ins. Co., 145 F.3d 1118, 1120 (9th Cir.1998) (quoting Credit Managers Ass’n v. Kennesaw Life & Accident Ins. Co., 809 F.2d 617, 625 (9th Cir.1987)). A determination of whether an ERISA plan exists is made from" }, { "docid": "10429566", "title": "", "text": "determination that an ERISA plan can only have existed at the level of the individual employer-members of CELSOC, rather than at the level of CELSOC itself. An ERISA “employee welfare benefit plan” is: (1) a plan, fund or program (2) established or maintained (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, [or] sickness ... benefits ... (5) to the participants or their beneficiaries. Moideen, 55 F.3d at 1481 (quoting Kanne, 867 F.2d at 492 (internal quotations omitted)); see also 29 U.S.C. § 1002(1) (1994). An employer is “any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity.” 29 U.S.C. § 1002(5) (emphasis added). The Department of Labor has interpreted § 1002(5) to require a bona fide “organizational relationship” among the alleged association of employees other than a mere association among employers for the purpose of securing benefits. Moideen, 55 F.3d at 1481 (citing Department of Labor opinions). Thus in Moideen, where membership in the United Association of Small Businesses was open to any business with fewer than 500 employees, in any industry, the members lacked “the commonality of interest that forms the basis for sponsorship of an employee welfare benefit plan,” id. (quoting Dep’t of Labor Op. No. 94—07A (Mar. 14, 1994)), needed to make a multiple employer insurance plan an ERISA plan. See also Crull v. Gem Ins. Co., 58 F.3d 1386, 1389 (9th Cir.1995) (“We have held that a multiple employer trust comprised of heterogeneous, unrelated employers is not an ERISA employer.”); Kanne, 867 F.2d at 493 (holding that plan sponsored by Associated Builders and Contractors was an ERISA plan); Credit Managers, 809 F.2d at 625 (holding that Master Trust was not an employer with respect to the beneficiaries of the plan where members were “heterogeneous, unrelated employers,” but concluding that component trusts that participated in plan “whose members would be in the same line of business" }, { "docid": "17449675", "title": "", "text": "Zoellner, 114 F.3d 713, 715 (8th Cir.1997). We review de novo a district court’s grant of summary judgment. Toghiyany v. AmeriGas Propane, Inc., 309 F.3d 1088, 1091 (8th Cir.2002). ‘We will affirm a grant of summary judgment if ‘the evidence, when viewed in the light most favorable to the nonmoving party, indicates that no genuine issue of any material fact exists and that the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th Cir. 2000)); Fed.R.Civ.P. 56(c). If, however, “the evidence presents a sufficient disagreement ... [and is not] so one-sided that one party must prevail as a matter of law[,]” summary judgment should not have been granted, and we must reverse the district court. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A. The Ceridian Plan is an “employee welfare benefit plan” as defined by ERISA. 29 U.S.C. § 1002(1) (defining employee welfare benefit plan as “any plan ... established or maintained by an employer ... for the purpose of providing for its participants ... benefits in the event of ... unemployment ... or any benefit described in section 186(c) of this title”). ERISA “superseded] any and all State laws [that] relate to any employee benefit plan ....” 29 U.S.C. § 1144(a); Shea, 107 F.3d at 627. ERISA, therefore, preempts state common law causes of action that reference or pertain to an ERISA plan. Shea, 107 F.3d at 627 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987)). Actions initiated in state court that are within the scope of and are preempted by ERISA may be removed to federal court. Crews v. Gen. Am. Life Ins. Co., 274 F.3d 502, 505 (8th Cir.2001) (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 64-67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). The district court held that removal of Employees’ claims was proper because it determined that Employees’ claims were related to the Ceridian plan and thus were" }, { "docid": "10425676", "title": "", "text": "58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). The District Court ruled that the GEM policy is an ERISA “employee benefit plan,” and that ERISA preempts the Crulls’ state law claims. Although the Crulls contended that, should the district court find their state law claims preempted, their complaint should be regarded as raising a claim for relief under ERISA’s civil enforcement scheme, the district court entered summary judgment for GEM without addressing that contention. DISCUSSION ERISA preempts all state law claims that “relate to any employee benefit plan_”29 U.S.C. § 1144(a). Accordingly, we first must determine whether an “employee benefit plan” exists in this case. I. Under ERISA, an “employee benefit plan” is either an “employee welfare benefit plan” or an “employee pension benefit plan,” or both. 29 U.S.C § 1002(3). See Silvera v. Mutual Life Ins. Co. of New York, 884 F.2d 423, 425 (9th Cir.1989). The insurance plan offered by GEM in this ease has nothing to do with pensions, so the likely statutory candidate is “employee welfare benefit plan.” 29 U.S.C. § 1002(1) defines “employee welfare benefit plan” as any plan, fund, or program which ... is ... established or maintained by an employer ... for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment. ... See Silvera, 884 F.2d at 425; Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per curiam) (as amended). We agree with the District Court that Picture Perfect established a plan to help Dale Crull obtain health insurance, and that this plan constitutes an ERISA “employee welfare benefit plan.” The Crulls disagree. They point out that a plan is an ERISA “employee benefit plan” only if it is “established or maintained by an employer or by an employee organization, or both.” With that we agree. The Crulls then argue that IMET is not a statutory “employer” or “employee organization.” See 29 U.S.C. §§ 1002(4), 1002(5). We have held that" }, { "docid": "6355591", "title": "", "text": "1002(1) (1988). Civil suits by beneficiaries to recover benefits under an ERISA plan can be brought only under the civil enforcement provision of ERISA, 29 U.S.C. § 1132(a). 29 U.S.C. § 1144(a) (1988); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 62-63, 107 S.Ct. 1542, 1545-46, 95 L.Ed.2d 55 (1987). Assertion of ERISA preemption permits removal of the beneficiary’s case from state court, even if the complaint has pleaded only state law claims. See Metropolitan Life Ins. Co., 481 U.S. at 63-67, 107 S.Ct. at 1546-48; Smith v. Dunham-Bush, Inc., 959 F.2d 6, 10 (2d Cir.1992). In such instances, however, the defendant bears the burden of demonstrating the propriety of removal. Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 n. 4 (9th Cir.), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989); Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976); Thomas v. Burlington Indus., 763 F.Supp. 1570, 1576 (S.D.Fla.1991); Isaacs v. Group Health, Inc., 668 F.Supp. 306, 311 (S.D.N.Y.1987). ERISA defines an “employee welfare benefit plan” as: any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer ... to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, ... medical, surgical, or hospital care or benefits.... 29 U.S.C. § 1002(1) (1988). The term “employer” includes “a group or association of employers,” such as a MET, acting on behalf of its members. 29 U.S.C. § 1002(5) (1988). “[A] ‘plan, fund, or program’ under ERISA is established if from the surrounding circumstances a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.” Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir.1982) (en banc); see also Randal v. Mid-West Nat’l Life Ins. Co. of Tennessee, 987 F.2d 1547, 1550 (11th Cir.), cert. denied," }, { "docid": "14565560", "title": "", "text": "or any part thereof. Fed.R.Civ.P. 56(a) & (b). Moreover, the court may ascertain which issues are not in controversy and order those issues deemed established for trial. Fed.R.Civ.P. 56(d). Summary judgment is appropriate if the record, read in the light most favorable to the non-moving party, demonstrates no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those necessary to the proof or defense of a claim, and are determined by reference to the substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 2. ERISA Preemption In 1974, Congress passed ERISA, which federalized much of employee benefit law. To insure uniformity and consistency, Congress included broad preemption provisions. See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44-47, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). ERISA preemption is “conspicuous for its breadth” — its “deliberately expansive language was designed to establish pension plan regulation as exclusively a federal concern.” Ingersoll Rand Co., 498 U.S. at 138, 111 S.Ct. 478 (internal quotations and citations omitted). “In particular, ERISA preempts state law causes of action that offer remedies for the violation of rights expressly guaranteed by ERISA and exclusively enforced by ERISA’s civil enforcement mechanism.” Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124, 1130 (9th Cir.1992). However, certain types of plans have been exempted from ERISA coverage. See 29 U.S.C. § 1003(b) (listing ERISA exemptions) 3.The ACWA Plan is an ERISA Plan The existence of an ERISA plan is a question of fact, to be answered in light of all the surrounding facts and circumstances from the point of view of a reasonable person. Kanne v. Connecticut General Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988). An ERISA “employee welfare benefit plan” is: (1) a plan, fund or program; (2) established or maintained; (3) by" }, { "docid": "13678246", "title": "", "text": "— any claim touching on that area of law will be considered a federal claim. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 2430, 96 L.Ed.2d 318 (1987); Kenney, 938 F.Supp. at 791. Defendants argue that the second of these exceptions is applicable here. ERISA is one of the few areas of law in which the Supreme Court has held that the complete preemption doctrine applies. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). ERISA broadly preempts state law claims which “relate to” an “employee benefit plan.” 29 U.S.C. § 1144(a); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Here, the parties dispute whether the disability insurance purchased by plaintiff was part of an “employee benefit plan.” 29 U.S.C. § 1002(1) defines an “employee welfare benefit plan” as: any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such a plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disabili ty, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services..... 29 U.S.C. § 1002(1). The Eleventh Circuit has held that an “employee benefit plan” under § 1002(1) has five essential elements: (1)a plan, fund, or program; (2) established or maintained; (3) by an employer or by an employee organization, or by both; (4) for the purpose of providing medical, surgical, ..., unemployment or vacation benefits, ...,; (5) to participants or their beneficiaries. Donovan v. Dillingham, 688 F.2d 1367 (11th Cir.1982). To assist in determining whether a plan is “established or maintained” by an employer or employee organization, the Department of Labor has promulgated a “safe harbor” regulation. See Johnson v. Watts Regulator Co., 63 F.3d" }, { "docid": "4607651", "title": "", "text": "at 219-20. The Court may resolve factual disputes concerning jurisdictional issues, Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 469 F.2d 416, 418 (5th Cir.1972), and may grant leave to amend a complaint to cure jurisdictional defects, 5A Wright & Miller, supra, § 1350, at 217. B. ERISA Pre-emption Generally ERISA expressly pre-empts state laws that relate to “employee benefit plans,” but does not pre-empt those that relate to employee benefits only. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 7-8, 107 S.Ct. 2211, 2215, 96 L.Ed.2d 1 (1987) (citing 29 U.S.C. § 1144). Under ERISA, “employee benefit plan” is defined to include “employee welfare benefit plan,” 29 U.S.C. § 1002(3), which is in turn defined to mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment____ Id. § 1002(1); see Donovan v. Dillingham, 688 F.2d 1367, 1370-73 (11th Cir.1982) (discussing requirements codified at 29 U.S.C. § 1002). The “relate to” pre-emption clause is interpreted expansively: a state law “‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983). ERISA pre-emption extends to state-law causes of action that relate to an employee benefit plan. Cockey v. Life Ins. Co., 804 F.Supp. 1571, 1574 (S.D.Ga.1992) (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47-48, 107 S.Ct. 1549, 1552-1553, 95 L.Ed.2d 39 (1987)). “[A] state law cause of action ‘relates to’ an employee benefit plan if the ... conduct giving rise to such claim was not ‘wholly remote in content’ from the benefit plan.” Farlow" }, { "docid": "2043477", "title": "", "text": "(1) a “plan, fund or program” (2) established or maintained (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, prepaid legal services or severance benefits (5) to the participants or their beneficiaries. Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per cu-riam) (as amended) (quoting Donovan v. Dillingham, 688 F.2d 1367, 1371 (11th Cir.1982) (en banc)). In order to provide the widest possible protection to all such plans, ERISA contains a preemption clause which states, in relevant part, that “this chapter shall supersede any and all State laws insofar as they ... relate to any employee benefit plan....” 29 U.S.C. § 1144(a). The Supreme Court has indicated that ERISA’s preemption of state laws should be construed broadly, Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46, 107 S.Ct. 1549, 1551-52, 95 L.Ed.2d 39 (1987), and this court has stated that such preemption “extends to state common-law causes of action as well as regulatory laws.” Scott v. Gulf Oil Corp., 754 F.2d 1499, 1502 (9th Cir.1985). One of the narrow exceptions to this broad coverage is that of the so-called “governmental plan.” A governmental plan is defined, in relevant part, as “a plan established or maintained for its employees ... by the government of any State or political subdivision thereof.” 29 U.S.C. § 1002(32). All such plans are exempt from ERISA coverage. 29 U.S.C. § 1003(b)(1). The parties’ dispute centers on whether the employee welfare benefit plan in question is a governmental plan. Ill MONY’s position may be summarized as follows: The plan it sold to City could not have been a governmental plan because (1) City’s taxing authority was not involved (i.e., City did not directly fund or otherwise underwrite the plan); and (2) it was MONY, not City, who designed and set up the plan, administered it on behalf of the employees, and was ultimately liable for the payment of benefits. MONY" } ]

[ { "docid": "22539410", "title": "", "text": "a § 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff’s criminal conviction was wrongful — would be the following: A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. (This is a common definition of that offense. See People v. Peacock, 68 N. Y. 2d 675, 496 N. E. 2d 683 (1986); 4 C. Torcia, Wharton’s Criminal Law § 593, p. 307 (14th ed. 1981).) He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judicata, see n. 2, supra, the § 1983 action will not lie. For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, see Murray v. United States, 487 U. S. 533, 539 (1988), and especially harmless error, see Arizona v. Fulminante, 499 U. S. 279, 307-308 (1991), such a § 1983 action, even if successful, would not necessarily imply that the plaintiff’s conviction was unlawfiil. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U. S. 299, 308 (1986), which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). For example, if a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his criminal trial, appeal, or state habeas action, abstention may be an appropriate response to the parallel state-court" } ]

[ { "docid": "6511273", "title": "", "text": "of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed.”); id. at 487 n. 7, 114 S.Ct. at 2372 n. 7 (“[A] suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the ... conviction.”). Because we decide the ease on other grounds, we need not resolve whether a conviction in this case would have barred this action. B. Damages for Intangible Injury Under 42 U.S.C. § 1983 Appellant contests the award of $8,500 in damages on a number of grounds. He first argues that plaintiffs seeking to recover for non-physical injury under § 1983 must demonstrate “severe emotional distress,” a term which he takes from state law of intentional infliction of emotional distress. See Yeager v. Local Union 20, Teamsters, 6 Ohio St.3d 369, 453 N.E.2d 666, 671 (1983) (Under Ohio law, a plaintiff seeking to recover for intentional infliction of emotional distress must show that defendant “by extreme and outrageous conduct intentionally or recklessly eause[d][him] severe emotional distress.”) (quoting Restatement (second) of ToRts § 46(1) (1965)). We review de novo this question of what legal standard is appropriate in § 1983 cases. See Holmes v. Donovan, 984 F.2d 732, 735 (6th Cir.1993). Although courts examining claims for damages under § 1983 should look to the common law for guidance, Memphis Community Sch. Dish v. Stachura, 477 U.S. 299, 306, 106 S.Ct. 2537, 2542, 91 L.Ed.2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 257-58, 98 S.Ct. 1042, 1049-50, 55 L.Ed.2d 252 (1978), they should not try to fit a constitutional claim into a Procrustean bed of common law tort. See Carey, 435 U.S. at 258, 98 5.Ct. at 1049 (“In [some] cases it may be appropriate to apply the tort rules of damages directly to the § 1983 action. In other cases, the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law torts.”) (citations omitted); Bivens, 403 U.S. at 392, 91 S.Ct. at 2002" }, { "docid": "23595257", "title": "", "text": "his will by the government; it is the constitutional tort. “Loss of time,” on the other hand, is simply one of a variety of compensable injuries, tangible and intangible, that can result from a loss of liberty. A loss of liberty, by itself, does not warrant a compensatory damages award any more than any other constitutional violation. This is not to ignore the seriousness of constitutional violations. The law vindicates such violations through awards of nominal damages, even absent proof of actual injury. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (“By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury .... ” (quoting Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978))); see also Shain v. Ellison, 273 F.3d 56, 67 (2d Cir.2001) (upholding nominal award of $1.00 in case of unlawful strip search). But to recover compensatory damages for a loss of liberty in a § 1983 action, a plaintiff must show that he suffered an injury compensable under the common law of torts. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. at 306, 106 S.Ct. 2537, 91 L.Ed.2d 249; Carey v. Piphus, 435 U.S. at 258-59, 98 S.Ct. 1042. “Loss of time” is an injury that has long been cognizable at common law. Its focus, however, is not on the general loss of liberty, but on a discrete form of economic harm: plaintiffs inability to work. See 22 Am.Jur.2d Damages §§ 138, 139, 158 (2003); 25 C.J.S. Damages § 54, at 391-92 (2002); 36 N.Y. Jur.2d Damages § 68, at 118-19 (1984); see also Southwestern, Brewery & Ice Co. v. Schmidt, 226 U.S. 162, 169, 33 S.Ct. 68, 57 L.Ed. 170 (1912) (Holmes, J.) (noting that jury was instructed to “consider the plaintiffs loss of time with" }, { "docid": "23608852", "title": "", "text": "exposed, and constituted the sole reason for Coleman’s placement at IMCC. From this evidence, a trier of fact could have found that Rahija had actual knowledge of the risk of pre-term labor. See Farmer, 511 U.S. at 842-43, 114 S.Ct. at 1981-82; Jensen, 94 F.3d at 1198. We therefore hold that the district court did not clearly err in finding that Rahija’s unnecessary delay in transferring Coleman to the University constituted deliberate indifference to Coleman’s serious medical need. See Johnson-El v. Schoemell, 878 F.2d 1043, 1055 (8th Cir.1989) (“Delay in the provision of treatment or in providing examinations can violate inmates’ rights when the inmates’ ailments are medically serious or painful in nature.”). C. Compensatory Damages Compensatory damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as impairment of reputation, personal humiliation, and mental anguish and suffering. Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 2543, 91 L.Ed.2d 249 (1986) (Stachura). Specifically, mental and emotional distress, which include mental suffering and emotional anguish, constitute compensable injury under § 1983. Carey v. Piphus, 435 U.S. 247, 264 & n. 20, 98 S.Ct. 1042, 1052 n. 20, 55 L.Ed.2d 252 (1978). While such injuries are essentially subjective, they may be evidenced by the plaintiffs conduct and observed by others. Id. at 264 n. 20, 98 S.Ct. at 1052 n. 20. Additionally, evidence of physical pain and suffering may support an award of compensatory damages in excess of any actual out- of-pocket medical expenses. Jackson v. Crews, 873 F.2d 1105, 1109 (8th Cir.1989). Rahija argues that the record does not support the district court’s finding that Coleman was subjected to pain and suffering from 9:30 p.m. until 11:30 p.m. Instead, Rahija suggests that Coleman experienced nothing different from what women endure during childbirth and that Coleman had access to a television and a bed as if she was in a hospital. She concludes that had she transferred Coleman to the University at 9:30 p.m., as suggested by the district court, Coleman would have experienced the same labor in the hospital as she" }, { "docid": "3323108", "title": "", "text": "civil action” to mean “[n]o Federal civil action [except for First Amendment violations].” If Congress desires such a reading of section 1997e(e), Congress can certainly say so. We cannot. Royal’s second argument is his claim does not involve mental or emotional injury, so the PLRA should not limit his recovery rights. Royal apparently contends other types of recovery are available to him. To the extent Royal argues nominal damages, punitive damages, and injunctive and declaratory relief are available to him, we agree. Congress did not intend section 1997e(e) to bar recovery for all forms of relief. See, e.g., Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (holding nominal damages should be granted for section 1983 claims when actual injury cannot be shown); Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (holding punitive damages are authorized for violations of constitutional rights); Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir.2003) (holding section 1997e(e) does not preclude nominal damages); Thompson, 284 F.3d at 418 (holding section 1997e(e) does not preclude injunc-tive relief or nominal damages); Searles, 251 F.3d at 878-79 (holding section 1997e(e) does not preclude nominal damages); Davis v. Dist. of Columbia, 158 F.3d 1342, 1346 (D.C.Cir.1998) (stating section 1997e(e) does not preclude injunc-tive relief); Zehner v. Trigg, 133 F.3d 459, 462 (7th Cir.1997) (same). Therefore, Royal was free to seek nominal damages, punitive damages, injunctive relief and a declaratory judgment. Congress is well within its authority to balance the interests and reasonably limit a prisoner’s relief. The district court awarded $1.00 in nominal damages to Royal, and considered awarding punitive damages. Faithfully following the PLRA, the district court appropriately awarded Royal $1.00 in nominal damages1 for Royal’s First Amendment violation. Royal may not recover some indescribable and indefinite damage allegedly arising from a violation of his constitutional rights. See, e.g., Stachura, 477 U.S. at 308 n. 11, 106 S.Ct. 2537 (stating “nominal damages, and not damages based on some undefinable ‘value’ of infringed rights, are the appropriate means of ‘vindicating’ rights whose deprivation has not" }, { "docid": "10438445", "title": "", "text": "S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985)). Moreover, in the absence of qualified immunity in § 1983 actions, the legality of a particular search or seizure under the Fourth Amendment is normally a question for the finder of fact. See DeLoach v. Bevers, 922 F.2d 618, 623 (10th Cir.) (this Circuit has “long recognized that it is a jury question in a civil rights suit whether an officer had probable cause to arrest”), cert. denied, — U.S. -, 112 S.Ct. 65, 116 L.Ed.2d 41 (1991); Bryant v. Whalen, 759 F.Supp. 410, 417 (N.D.Ill.1991); cf. Valdez v. Black, 446 F.2d 1071, 1078 (10th Cir.1971) (whether search was supported by probable cause is question for court if the material facts underlying a § 1983 claim are not in dispute), cert. denied, 405 U.S. 963, 92 S.Ct. 1167, 31 L.Ed.2d 238 (1972); Draeger v. Grand Central, Inc., 504 F.2d 142, 144 (10th Cir.1974). The court finds that the facts as alleged by plaintiff are sufficient to raise a genuine issue of fact regarding the reasonableness of Kenney’s efforts to determine that the fugitive Bailey both resided at plaintiff's house and was present at the time of the forcible entry into plaintiff’s home. Because the court cannot say as a matter of law that Kenney acted reasonably under the circumstances, summary judgment is inappropriate. C. Existence of Constitutional Injury Kenney notes that plaintiff sustained no physical injury and saw no psychologist. Thus, Kenney argues that plaintiff did not suffer any injuries actionable under § 1983. Compensatory damages under § 1983 are determined according to the principles of common law tort, which allows recovery of compensatory damages only for actual losses or injuries. Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306-07, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). “[C]om-pensatory damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as ‘impairment of reputation ..., personal humiliation, and mental anguish and suffering.’ ” Stachura, 477 U.S. at 307, 106 S.Ct. at 2543 (quoting Gertz v. Robert" }, { "docid": "22098836", "title": "", "text": "embarrassment or humiliation. He contends that the Blochs must allege a “specific, visible injury or harm.” Ribar claims in his brief that he “has been unable to locate a single case recognizing a First Amendment retaliation claim where the injury alleged was solely embarrassment, humiliation and/or emotional distress.” Apparently Ribar did not search very far. Notwithstanding Ribar’s sweeping statement, the Supreme Court has held that, in the context of a § 1983 action, “compensatory damages may include ... such injuries as ‘impairment of reputation ..., personal humiliation, and mental anguish and suffering.’ ” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). This court has also recognized these types of injuries. See Barrett v. Harrington, 130 F.3d 246 (6th Cir.1997) (affirming a denial of summary judgment on qualified immunity grounds when a judge retaliated against a litigant by attempting to embarrass him); Chatman v. Slagle, 107 F.3d 380, 384-85 (6th Cir.1997) (listing numerous cases that have found emotional distress to be a compensable injury under § 1983, including damages for “intimidation, marital problems, weight loss, loss of sleep, shock, or humiliation.” (quoting Holmes v. Donovan, 984 F.2d 732, 739 (6th Cir.1993))); Pembaur v. City of Cincinnati, 882 F.2d 1101, 1104 (6th Cir.1989) (“[T]he injury need not have been a physical one. Damages for pain and suffering, mental anguish, and the like are available to the extent that actual injury has been proved.”). Other circuits have reached a similar conclusion. In Bart v. Telford, 677 F.2d 622 (7th Cir.1982), for example, a city employee in the mayor’s office ran in an election against the incumbent mayor. Upon the employee’s return to the mayor’s office after losing the election, her co-workers, including the may- or, began harassing her. She consequently brought a retaliation claim under § 1983. The employee alleged, among other things, that she was harassed for bringing a birthday cake to work on a co-worker’s birthday, even though the office generally encouraged this type of" }, { "docid": "10438446", "title": "", "text": "to determine that the fugitive Bailey both resided at plaintiff's house and was present at the time of the forcible entry into plaintiff’s home. Because the court cannot say as a matter of law that Kenney acted reasonably under the circumstances, summary judgment is inappropriate. C. Existence of Constitutional Injury Kenney notes that plaintiff sustained no physical injury and saw no psychologist. Thus, Kenney argues that plaintiff did not suffer any injuries actionable under § 1983. Compensatory damages under § 1983 are determined according to the principles of common law tort, which allows recovery of compensatory damages only for actual losses or injuries. Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306-07, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). “[C]om-pensatory damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as ‘impairment of reputation ..., personal humiliation, and mental anguish and suffering.’ ” Stachura, 477 U.S. at 307, 106 S.Ct. at 2543 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974)). In appropriate circumstances, presumed actual damages may also be appropriate. Id. ill U.S. at 311, 106 S.Ct. at 2545. Moreover, even in the absence of an actual loss, nominal damages are available under § 1983. Wolfenbarger v. Williams, 774 F.2d 358, 362 (10th Cir.1985), cert. denied, 475 U.S. 1065, 106 S.Ct. 1376, 89 L.Ed.2d 602 (1986). Kenney’s argument is not well taken. Regardless of the extent of plaintiff’s injuries, proof of an illegal search and seizure would entitle plaintiff to recover damages under § 1983 — if only nominal damages. Section 1983 does not impose a jurisdictional minimum amount of damages. Hill v. McIntyre, 884 F.2d 271, 278 (6th Cir.1989). Contrary to Kenney’s assertion, Jackson v. Pantazes, 810 F.2d 426 (4th Cir.1987) does not stand for the proposition that excessive force in apprehending the bondsman’s fugitive must be shown before plaintiff may state a claim under § 1983. In Pantazes a bondsman and a police officer acted jointly to force their" }, { "docid": "22407948", "title": "", "text": "authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. 512 U.S. at 486-87, 114 S.Ct. 2364 (footnote omitted). Therefore, a “district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487, 114 S.Ct. 2364. However, the Court pointed out that if a “plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. (footnotes omitted). The Court offered an example of a lawsuit that would not be barred by the Heck doctrine: For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, see Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), and especially harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307-308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986), which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). 512 U.S. at 487 n. 7, 114 S.Ct. 2364. The Court visited this issue again in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). In Edwards, an inmate brought a § 1983" }, { "docid": "19748075", "title": "", "text": "plaintiff to miss a court filing deadline or violate a published court rule, thereby placing his claims in jeopardy of dismissal, such actions would be unlawful under the clearly established constitutional access to court standards set forth in Lewis.” Therefore, Hust was not entitled to qualified immunity from Phillips’s access to the courts claim. IV. Having determined that the district court properly granted summary judgment to Phillips on the question of liability, we must now address Hust’s contention that the district court’s award of damages was improper. A district court’s computation of damages is a finding of fact that this Court reviews for clear error. Amantea-Cabrera v. Potter, 279 F.3d 746, 750 (9th Cir.2002). The purpose of § 1983 damages is to provide compensation for injuries caused by the violation of a plaintiffs legal rights. Memphis Com. Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). Accordingly, no compensatory damages may be awarded absent proof of actual injury. Id. at 308, 106 S.Ct. 2537 (“Where no injury [is] present, no ‘compensatory’ damages [can] be awarded.”). Moreover, “the abstract value of a constitutional right may not form the basis for § 1983 damages.” Id. at 307, 106 S.Ct. 2537 (citing Carey v. Piphus, 435 U.S. 247, 255, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). Hust argues that Phillips has not established that his lost post-conviction claim had any value, and that as a matter of law he may not recover the costs of the state-corni; proceedings. Harbury’s requirement that the remedy sought on a backward looking access to the courts claim must be one not available in some other lawsuit suggests that, where a claim has been irrevocably lost as a result of the constitutional violation, one possible measure of the remedy for the loss of access is the remedy which would have been available on the lost claim. See Harbury, 536 U.S. at 415, 415, 122 S.Ct. 2179 n. 13. Here, had Phillips been able to present his claim to the Supreme Court, and had he prevailed in his efforts to overturn his state" }, { "docid": "23303808", "title": "", "text": "and especially harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307-308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986), which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). Heck, 512 U.S. at 487, 114 S.Ct. 2364. This Court dealt with the applicability of Heck in Montgomery v. De Simone, 159 F.3d at 126. In Montgomery, the plaintiff Rosemary Montgomery was arrested and charged with speeding, drunk driving, and refusing to take a breathalyser test. Id. at 123. At her municipal hearing, she introduced evidence that she was not drunk or speeding, and that at the time of her arrest, the arresting officer had propositioned her. Id. at 122-23. Although a municipal judge found her guilty, later the Superior Court of New Jersey, in a trial de novo, reversed the convictions. Id. at 123. After her convictions were overturned, she brought an action against the arresting officer in the United States District Court for false arrest and false imprisonment. Id. The District Court ruled that her claims accrued at her arrest and were time-barred by the statute of limitations. Id. In affirming the dismissal, this Court explained that “[i]t is axiomatic that under federal law, which governs the accrual of section 1983 claims, the limitations period begins to run from the time when the plaintiff knows or has reason to know of the injury which is the basis of the section 1983 action.... Accordingly, under Gentry, [sic] the two-year limitation period for Montgomery’s section 1983 false arrest and false imprisonment claims began to run on September 30, 1992, the night of Montgomery’s arrest and detention.” Id. at 126 (internal quotation marks omitted). In a footnote, we" }, { "docid": "2796472", "title": "", "text": "harms, but also such injuries as ‘impairment of reputation ..., personal humiliation, and mental anguish and suffering.’ ” Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). By the same token, however, the Court held that substantial damages may only be awarded to compensate for actual injury suffered as a result of the violation of a constitutional right. See id. at 308, 106 S.Ct. 2537. Indeed, in that case the Court overturned a substantial jury verdict for the plaintiff because the jury had been erroneously instructed to place their own subjective value on the constitutional rights transgressed. See also Carey, 435 U.S. at 248, 98 S.Ct. 1042 (absent proof of actual injury, compensatory damages may not be awarded); Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205, 1214-15 (10th Cir.1999) (reversing an award of damages for a free exercise claim where the district court calculated damages based on an abstract, per diem calculation rather than on evidence of actual mental or emotional harm suffered by prisoner). “[T]he abstract value of a constitutional right,” the Supreme Court has stated, “may not form the basis for § 1983 damages.” Stachura, 477 U.S. at 308, 106 S.Ct. 2537. We see no construction of Allah’s complaint that would save his claims for compensatory damages from the bar imposed by § 1997e(e). Allah seeks substantial damages for the harm he suffered as a result of defendants’ alleged violation of his First Amendment right to free exercise of religion. As we read his complaint, the only actual injury that could form the basis for the award he seeks would be mental and/or emotional injury. Under § 1997e(e), however, in order to bring a claim for mental or emotional injury suffered while in custody, a prisoner must allege physical injury, an allegation that Allah undisputedly does not make. Accordingly, Allah’s claims for compensatory damages are barred by § 1997e(e) and were appropriately dismissed. Allah relies on footnote 14 in the Stadium opinion" }, { "docid": "22407949", "title": "", "text": "criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, see Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), and especially harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307-308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986), which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). 512 U.S. at 487 n. 7, 114 S.Ct. 2364. The Court visited this issue again in Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). In Edwards, an inmate brought a § 1983 lawsuit challenging the procedures used in his prison disciplinary proceedings that resulted in the loss of good-time credit. He alleged that the hearing officer concealed exculpatory witnesses, and refused to asked certain questions to specified witnesses. He sought damages for depriving him of good-time credits without due process, not for depriving him of good-time credits undeservedly as a substantive matter. The Court held that the Heck principle applied because the procedural defect complained of would, if established, necessarily imply the invalidity of the disciplinary action. Respondent’s claim ... assert[s] that the cause of the exclusion of the exculpatory evidence was the deceit and bias of the hearing officer himself. He contends that the hearing officer lied about the nonexistence of witness statements, and thus “intentionally denied” him the right to present the extant exculpatory evidence. A criminal defendant tried by a partial judge is entitled to have his conviction set aside, no matter how strong the evidence against him. The due process requirements for a prison disciplinary hearing are in many respects less demanding that" }, { "docid": "3073882", "title": "", "text": "in excessive force cases under the due process clause of the Fourteenth Amendment. Shillingford v. Holmes, 634 F.2d 263 (5th Cir.1981); Johnson v. Moral, 843 F.2d 846 (5th Cir.1988) [en banc decision pending]. In other words, some acts that cause injury are not constitutional violations. The other inquiry, which we undertake in this Fourth Amendment case involving our review of a jury verdict, only asks whether a police search was based on probable cause. No issue exists concerning the severity or degree of an injury in a Fourth Amendment inquiry. An officer either conducts a search with probable cause or conducts a search without probable cause. As discussed above with respect to Avirett’s qualified immunity defense, the jury properly could have concluded from the evidence that Avirett and his colleagues violated the Fourth Amendment by entering Melear’s apartment without probable cause. In the absence of a successful defense, the existence of a Fourth Amendment violation sufficiently predicates Section 1983 liability. A plaintiff is entitled to at least nominal damages for such a violation of an absolute right. Memphis Community School District v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 2544 n. 11, 91 L.Ed.2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 265-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978); Familias Unidas v. Briscoe, 619 F.2d 391, 402 (5th Cir.1980). Avirett does not contend that Melear failed to prove actual, compensable injury. Nor does he maintain that the damages are excessive or disproportionate to the injury caused by the search of her apartment, a search that kept her at gunpoint. We conclude, therefore, that the jury was entitled to find Avirett liable for actual damages under Section 1983 for his role in the unconstitutional searches of both the Stewart and Melear apartments. While the difficulties of law enforcement are great, police investigations cannot be allowed to subordinate the rights of men and women under our Constitution. This principle runs deep in our jurisprudence, and we will stand by it until time has tolled its last bell. D. Propriety of Punitive Damages. Finally, Avirett maintains that even if he is" }, { "docid": "16865509", "title": "", "text": "see Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986), which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). Heck, 512 U.S. at 487 n. 7, 114 S.Ct. 2364. In applying Heckin. general, and footnote seven in particular, we have ruled that any § 1983 claim for damages resulting from a false arrest is not barred by Heck and accrues immediately after the arrest, because such alleged violations of the Fourth Amendment would not necessarily impugn the validity of a conviction. See, e.g., Copus v. City of Edgerton, 151 F.3d 646, 648-49 (7th Cir.1998); Gonzalez v. Entress, 133 F.3d 551, 553 (7th Cir.1998); Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir.1996); Simpson v. Rowan, 73 F.3d 134, 136 (7th Cir.1995). In explaining our holdings, we have reasoned that “wrongful detentions [are] actionable under state law and the fourth amendment no matter what happens to the criminal prosecution” (ie., that the injury of being detained illegally is compensable regardless of whether the plaintiff is later convicted or even prosecuted, see, e.g., Gonzalez, 133 F.3d at 553), and that “one can have a successful wrongful arrest claim and still have a perfectly valid conviction.” Booker, 94 F.3d at 1056 (7th Cir.1996) (citations omitted). We have applied this principle categorically to all § 1983 claims for false arrest, ruling that “Fourth Amendment claims for unlawful searches or arrests do not necessarily imply a conviction is invalid, so in all cases these claims can go forward.” Copus, 151 F.3d at 648. However, while Snodderly acknowledges that we have taken a categorical approach in our application of Heck to false arrest cases and have" }, { "docid": "16865508", "title": "", "text": "sentence.” Id. at 487, 114 S.Ct. 2364. However, if a district court determines that judgment for the plaintiff on the § 1983 damages action would not “demonstrate the invalidity of any outstanding criminal judgment against the plaintiff,” the action is cognizable and should be allowed to proceed, in the absence of some other bar to the suit. See id. In footnote seven to its opinion, the Court provided an example of a § 1983 claim which would not necessarily demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, and which could therefore be brought without a showing that any outstanding conviction or sentence had been invalidated. The Court stated: [A] suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, see Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), and especially harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986), which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). Heck, 512 U.S. at 487 n. 7, 114 S.Ct. 2364. In applying Heckin. general, and footnote seven in particular, we have ruled that any § 1983 claim for damages resulting from a false arrest is not barred by Heck and accrues immediately after the arrest, because such alleged violations of the Fourth Amendment would not necessarily impugn the validity of a conviction. See, e.g., Copus v. City of Edgerton, 151 F.3d 646, 648-49 (7th Cir.1998); Gonzalez" }, { "docid": "22434329", "title": "", "text": "argue on appeal that this dismissal was incorrect and, therefore, the district court’s order is final as to that point. II. Intentional Infliction of Emotional Distress Miller also argues on appeal that the district court erred in dismissing his claim for intentional infliction of emotional distress. After reading plaintiff’s amended complaint, we cannot determine whether plaintiff seeks damages for emotional distress resulting from the constitutional deprivations he asserts or whether the complaint asserts a pendent state law claim for the tort of intentional infliction of emotional distress. In order to construe the complaint liberally, we examine both possibilities. We have held that “damages may be awarded for nonpecuniary injury, such as psychological harm, where plaintiff has been deprived of his substantive constitutional rights.” Foster v. MCI Telecommunications Corp., 773 F.2d 1116, 1120 (10th Cir.1985); see also Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (“mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983”); Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308-09, 106 S.Ct. 2537, 2543-44, 91 L.Ed.2d 249 (1986) (Carey stood for proposition that compensatory damages are available under § 1983 for constitutional violations, regardless of whether the constitutional right violated is procedural or substantive). We concluded above that Miller’s amended complaint states a claim for violation of a substantive constitutional right — the Eighth Amendment right to be free from the use of excessive force. Therefore, if it is determined on remand that Miller’s Eighth Amendment rights were violated, then he potentially may recover compensatory damages for emotional distress. Plaintiff’s amended complaint may also state a pendent claim for the tort of intentional infliction of emotional distress. Again, the district court specifically refused to address pendent state law claims because it held that Miller failed to state a substantial federal claim. Because we hold that Miller’s amended complaint states a § 1983 claim for use of excessive force, we remand for a determination of whether to exercise pendent jurisdiction if a pendent claim exists. III. Deliberate Indifference to Medical Needs Plaintiff contends that" }, { "docid": "23303807", "title": "", "text": "invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-87, 114 S.Ct. 2364 (footnote omitted). Nevertheless, the Supreme Court in Heck was careful to explain that not all constitutional claims arising from an arrest and prosecution are the kind that are subject to the deferred accrual rule. Some claims would not necessarily invalidate a conviction. The Court laid particular emphasis on Fourth Amendment claims in footnote seven, explaining: For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, see Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), and especially harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307-308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986), which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). Heck, 512 U.S. at 487, 114 S.Ct. 2364. This Court dealt with the applicability of Heck in Montgomery v. De Simone, 159 F.3d at 126. In Montgomery, the plaintiff Rosemary Montgomery was arrested and charged with speeding, drunk driving, and refusing to take a breathalyser test. Id. at 123. At her municipal hearing, she introduced evidence that she was not drunk or speeding, and that at the time of her arrest, the" }, { "docid": "23628912", "title": "", "text": "unlawful action by his subordinates, and they provided no evidence that he had an opportunity to prevent recurrences, Their position is that McQuillan had to know that his fellow officers were committing constitutional violations and yet he chose to do nothing; in essence, that McQuillan should be liable on a theory of bystander liability. However, the jury found that he was not liable as a bystander. Because the evidence is insufficient to sustain the verdict against Lieutenant McQuilan on the theory of supervisory liability, we must vacate it. B. Having resolved the issues relating to the liability of the Supervisors, we turn to the sole remaining damage award, which was made to Plaintiff Randall in connection with the First Search. It is well established at common law that a plaintiff can only recover damages for ac tual injury suffered as a result of the alleged tort. See Memphis Community School Dist. v. Stachura, 477 U.S. 299, 301, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). Randall was therefore required to show an actual injury resulting from his unlawful seizure. The Corporals (Rosser and Silvers) maintain that Randall failed to make such a showing, because he offered no evidence of physical or monetary injury and he presented insufficient evidence of emotional distress. 1. Because the Corporals, pursuant to the verdict, possess qualified immunity for any violation of Randall’s federally protected constitutional rights, their liability to Randall stems solely from their violation of his constitutional rights under Article 24. As such, our examination of their challenge to Randall’s damage award is governed by Maryland law. This distinction has theoretical significance because, although the right of recovery for federal violations arises under statute, i.e., § 1983, “a violation of Article 24 of the Maryland Declaration of Rights may be redressed through a common law action for damages.” Ashton v. Brown, 339 Md. 70, 660 A.2d 447, 462 (Md.1995); see DiPino v. Davis, 354 Md. 18, 729 A.2d 354, 371 (Md.1999). As a practical matter, however, this distinction makes little difference because § 1983 creates “a species of tort liability in favor of persons who" }, { "docid": "5325215", "title": "", "text": "that they were\" actually harmed by the denial of educational opportunities while in the CMU. The claim may not proceed based on the “fear” that they might be harmed by the possibility that they might not receive the programming. Plaintiffs have also failed to articulate how their other alleged injuries constitute compensable harms, apart from nominal damages, that are distinct from “mental or emotional injury.” Plaintiffs claim that their placement in the CMU has inflicted harm on their “family relations” that is “a category of harm separate from mental and emotional distress,” but their only support for this proposition is a treatise from the 19th century. See Pis.’ Opp. at 34. Plaintiffs’ argument seems to be that the violation of their constitutional rights — be it their right to see their family, their First Amendment rights, or their “loss of liberty” — must be compensable, even without any harm that they can articulate or quantify. Yet the Supreme Court has been clear that “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986); see also id. at 309, 106 S.Ct. 2537 (“[Damages must always be designed ‘to compensate injuries caused by the constitutional deprivation.’ ”) (quoting Carey v. Piphus, 435 U.S. 247, 265, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). Contrary to Plaintiffs’ brief, D.C. Circuit case law confirms that “our inquiry of course must not wander from the quantum of injury to protected interests into a consideration of the ‘inherent value’ of the constitutional right;” “the court must bear in mind that injury that is not reasonably quantifiable is to be compensated with nominal damages.” Hobson v. Wilson, 737 F.2d 1, 61-62 (D.C.Cir.1984). In other words, even with respect to the violation of one’s constitutional rights, the plaintiff must articulate how that violation actually causes him injury, or else receive only nominal damages. Claiming mental or emotional injuries is generally fair game for constitutional violations. See Hobson, 737 F.2d at 62 (“In reaching" }, { "docid": "3073883", "title": "", "text": "absolute right. Memphis Community School District v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 2544 n. 11, 91 L.Ed.2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 265-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978); Familias Unidas v. Briscoe, 619 F.2d 391, 402 (5th Cir.1980). Avirett does not contend that Melear failed to prove actual, compensable injury. Nor does he maintain that the damages are excessive or disproportionate to the injury caused by the search of her apartment, a search that kept her at gunpoint. We conclude, therefore, that the jury was entitled to find Avirett liable for actual damages under Section 1983 for his role in the unconstitutional searches of both the Stewart and Melear apartments. While the difficulties of law enforcement are great, police investigations cannot be allowed to subordinate the rights of men and women under our Constitution. This principle runs deep in our jurisprudence, and we will stand by it until time has tolled its last bell. D. Propriety of Punitive Damages. Finally, Avirett maintains that even if he is liable under Section 1983 for violating the Fourth Amendment rights of Stewart and Melear, the jury’s award of punitive damages is not supported by sufficient evidence. The standard in this area is clear. “[A] jury may be permitted to assess punitive damages in an action under Section 1983 when the defendant’s conduct ... involves callous or reckless indifference to the rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1649, 75 L.Ed.2d 632 (1983); Hinskaw v. Doffer, 785 F.2d 1260, 1270 (5th Cir.1985). Punitive damages awards serve the dual goals of punishing the defendant for his or her conduct and deterring others from engaging in similar behavior. Memphis Community School District v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 2542 n. 9, 91 L.Ed.2d 249 (1986). The scope of our review remains strictly limited in the punitive damages context. Longoria v. Wilson, 730 F.2d 300, 305-06 (5th Cir.1984). Based on the evidence in the record, a reasonable jury could have properly assessed punitive damages by finding that Avirett was recklessly indifferent" } ]

[ { "docid": "22726907", "title": "", "text": "formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law— do not warrant Chevron-style deference. See, e. g., Reno v. Koray, 515 U. S. 50, 61 (1995) (internal agency guideline, which is not “subject to the rigors of the Administrative Procedure] Act, including public notice and comment,” entitled only to “some deference” (internal quotation marks omitted)); EEOC v. Arabian American Oil Co., 499 U. S. 244, 256-258 (1991) (interpretative guidelines do not receive Chevron deference); Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 157 (1991) (interpretative rules and enforcement guidelines are “not entitled to the same deference as norms that derive from the exercise of the Secretary’s delegated lawmaking powers”). See generally 1 K. Davis & R. Pierce, Administrative Law Treatise § 3.5 (3d ed. 1994). Instead, interpretations contained in formats such as opinion letters are “entitled to respect” under our decision in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), but only to the extent that those interpretations have the “power to persuade,” ibid. See Arabian American Oil Co., supra, at 256-258. As explained above, we find unpersuasive the agency’s interpretation of the statute at issue in this case. Of course, the framework of deference set forth in Chevron does apply to an agency interpretation contained in a regulation. But in this case the Department of Labor’s regulation does not address the issue of compelled compensatory time. The regulation provides only that “[t]he agreement or understanding [between the employer and employee] may include other provisions governing the preservation, use, or cashing out of compensatory time so long as these provisions are consistent with [§207(o)].” 29 CFR § 553.23(a)(2) (1999) (emphasis added). Nothing in the regulation even arguably requires that an employer’s compelled use policy must be included in an agreement. The text of the regulation itself indicates that its command is permissive, not mandatory. Seeking to overcome the regulation’s obvious meaning, the United States asserts that the agency’s opinion letter" } ]

[ { "docid": "4187059", "title": "", "text": "the exemption. Indeed, § 552.3 tracks the relevant legislative history that the DOL would have reasonably taken as its guidance. See H.R.Rep. No. 93-913, at 35 (“the generally accepted meaning of domestic service relates to services of a household nature performed by an employee in or about a private home of the person by whom he or she is employed ” (emphasis added)). Thus, the stark internal inconsistency between § 552.109(a) and § 552.3, when coupled with the latter’s entitlement to greater deference and its greater consistency with congressional purpose, strongly counsels against enforcement of § 552.109(a). Moreover, the agency’s position with regard to FLSA coverage through time has hardly been a model of consistency. We have recounted above how, in 1974, the agency proposed a regulation that would have afforded FLSA coverage to employees of third party employers only to reverse itself with the promulgation of § 552.109(a). In 2001, the DOL again proposed that employees of third party employers get FLSA coverage (contrary to the view it endorses in this litigation), only to withdraw the proposal shortly thereafter based on economic considerations that have no bearing on the more relevant question of what Congress intended in 1974. (3) Validity of the DOL’s reasoning Finally, the DOL’s inadequate reasoning in support of the regulation is matched by its failure.to exhibit thoroughness in its consideration. Two omissions are particularly notable. First, the DOL offered virtually no explanation for the direct inconsistency between § 552.109(a) and § 552.3. Second, the DOL has not adequately explained — either in the Federal Register or in its submissions to this court — what accounted for the about-face after putting the regulations out for notice and comment in 1974, resulting in third party employers, for the first time, being entitled to claim the exemption. Compare 39 Fed.Reg. 35,-385 (proposing a regulation on October 1, 1974 that retained the FLSA coverage of employees of third party employers), with 40 Fed.Reg. 7405 (adopting a regulation on Feb. 20, 1975 allowing such employees to be subject to the exemption). While the Federal Register recited that “[o]n further consideration," }, { "docid": "4187054", "title": "", "text": "interpretative regulation despite the fact that the procedure was not required. While Mead does not offer specific guidance on whether putting a proposed interpretation out for notice and comment has any effect on deference, following the notice and comment procedure, at most, buttresses a claim that the agency gave consideration to what it did; it does not alter the fact that the agency did not act pursuant to legislative authority. In any event, here we cannot ignore that the notice and comment procedure for § 552.109(a) was at best idiosyncratic and at worst insufficient. The original notice informed the public that employees of third party employers were not going to be exempt from the FLSA (consistent with § 552.3), see 39 Fed.Reg. 35,385 (proposed Oct. 1, 1974), but the final rule provided exactly the opposite without a detailed explanation, see 40 Fed.Reg. 7405 (Feb. 20, 1975). Because we conclude that § 552.109(a) is interpretative, and thus need not have conformed with notice and comment procedures, we have no occasion to decide whether this regulation is invalid under the Administrative Procedure Act, 5 U.S.C. § 553(b)(3)(A). Cf. Nat’l Black Media Coalition v. FCC, 791 F.2d 1016, 1022 (2d Cir.1986) (“[I]f the final rule deviates too sharply from the proposal, affected parties will be deprived of notice and an opportunity to respond to the proposal.”) (internal quotation marks omitted). Nevertheless, we decline the DOL’s invitation to bootstrap an entitlement to Chevron deference for an interpretative regulation from this substandard notice and comment procedure. While we agree with Coke that § 552.109(a) does not command Chevron deference, Mead nevertheless requires us to afford the agency some level of deference with the vague prescription to “tailor deference to variety,” 533 U.S. at 236, 121 S.Ct. 2164. We believe that Skidmore deference based upon the regulation’s “power to persuade” is the appropriate level of deference to be applied where, as here, “the agency has some special claim to expertise under the statute.” Merrill, supra, at 812. To the extent that the regulation represents “more specialized experience and broader investigations and information” available to the agency," }, { "docid": "4187058", "title": "", "text": "to the Fair Labor Standards Act, 35 Colum. Hum. Rts. L.Rev. 113, 117 (2003). It is implausible, to say the least, that Congress, in wishing to expand FLSA coverage, would have wanted the DOL to eliminate coverage for employees of third party employers who had previously been covered. (2) Consistency with other regulations and through time Section 552.109(a) is also jarringly inconsistent with other regulations the DOL itself promulgated under the FLSA immediately following the 1974 amendments. In 29 C.F.R. § 552.3, the DOL defined the term “domestic service employment” to refer “to services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed.” 29 C.F.R. § 552.3 (emphasis added). Unlike § 552.109(a), this regulation was legislative, issued pursuant to § 213(a)(15) and, thus, entitled to Chevron deference. See 29 C.F.R. § 552.2(c) (“[t]he definitions required by [§ 213(a)(15)] are contained in [] § 552.3”). Plainly, under § 552.3, employees' employed by third parties do not qualify for the exemption. Indeed, § 552.3 tracks the relevant legislative history that the DOL would have reasonably taken as its guidance. See H.R.Rep. No. 93-913, at 35 (“the generally accepted meaning of domestic service relates to services of a household nature performed by an employee in or about a private home of the person by whom he or she is employed ” (emphasis added)). Thus, the stark internal inconsistency between § 552.109(a) and § 552.3, when coupled with the latter’s entitlement to greater deference and its greater consistency with congressional purpose, strongly counsels against enforcement of § 552.109(a). Moreover, the agency’s position with regard to FLSA coverage through time has hardly been a model of consistency. We have recounted above how, in 1974, the agency proposed a regulation that would have afforded FLSA coverage to employees of third party employers only to reverse itself with the promulgation of § 552.109(a). In 2001, the DOL again proposed that employees of third party employers get FLSA coverage (contrary to the view it endorses in this litigation), only to" }, { "docid": "4187060", "title": "", "text": "withdraw the proposal shortly thereafter based on economic considerations that have no bearing on the more relevant question of what Congress intended in 1974. (3) Validity of the DOL’s reasoning Finally, the DOL’s inadequate reasoning in support of the regulation is matched by its failure.to exhibit thoroughness in its consideration. Two omissions are particularly notable. First, the DOL offered virtually no explanation for the direct inconsistency between § 552.109(a) and § 552.3. Second, the DOL has not adequately explained — either in the Federal Register or in its submissions to this court — what accounted for the about-face after putting the regulations out for notice and comment in 1974, resulting in third party employers, for the first time, being entitled to claim the exemption. Compare 39 Fed.Reg. 35,-385 (proposing a regulation on October 1, 1974 that retained the FLSA coverage of employees of third party employers), with 40 Fed.Reg. 7405 (adopting a regulation on Feb. 20, 1975 allowing such employees to be subject to the exemption). While the Federal Register recited that “[o]n further consideration, [the Secretary of Labor] ha[s]' concluded that the [‘companionship services’] exemption can be available to such third party employers since they apply to ‘any employee’ engaged ‘in’ the enumerated services,” 40 Fed.Reg. 7404, the DOL ignored the plain language of the statute, which precluded an interpretation that the exemption could apply to “any” employee; on its face, it may apply only to employees in “domestic service employment.” 29 U.S.C. § 213(a)(15); see also 29 C.F.R. § 552.3 (defining “domestic service employment” to preclude employees of third party employers). The agency’s reasoning has not improved with time. Acknowledging the internal contradiction between § 552.109(a) and § 552.3 in its brief, the DOL today is reduced to asserting that we should uphold the regulation because other courts have done so. This is hardly an argument. As we have explained, the decisions relied upon by the DOL were all prior to the Supreme Court’s Mead decision, based on which we hold that Chevron deference is inapplicable to § 552.109(a). Thus, no other court has considered § 552.109(a) under" }, { "docid": "4187030", "title": "", "text": "are employed by an employer or agency other than the family or household using their services.” Section 552.109(a) appears under the “Subpart B” heading, “Interpretations,” as opposed to the “Subpart A” heading, “General Regulations,” under which §§ 552.3 and 552.6 are listed. This regulation exempted employees who the DOL concedes were not exempt prior to the 1974 amendments. See Employment of Domestic Service Employees, 39 Fed.Reg. 35, 382, 35, 385 (proposed Oct. 1, 1974) (finding that “[e]mploy-ees who are engaged in providing ... companionship services and who are employed by an employer other than the families or households using such services” were “subject to the [FLSA] prior to the 1974 Amendments”). Prior to the promulgation of § 552.109(a), the DOL put out a different proposed rule for notice and comment: one that specifically declined to apply the “companionship services” exemption to employees of third party employers. See id. Following notice and comment on that proposed regulation, the agency reversed its position and offered the following explanation: “On further consideration, [the Secretary of Labor] ha[s] concluded that these exemptions can be available to such third party employers since they apply to ‘any employee’ engaged ‘in’ the enumerated services.” Application of the Fair Labor Standards Act to Domestic Service, 40 Fed.Reg. 7404, 7405 (Feb. 20, 1975) (codified at 29 C.F.R. pts. 516, 552). The statement accompanying the regulation did not explain how bringing these previously covered employees of third party employers within the exemption furthered the congressional purpose of expanding, and not narrowing, FLSA coverage from what it had been prior to 1974. The DOL did not extend the exemption to apply to those employees employed by third parties that provide “babysitting services.” See 29 C.F.R. § 552.109(b). The DOL has enforced the two regulations at issue since them promulgation in 1974 and Congress has not disturbed the details of the scheme recounted here in the nearly thirty years they have been in force. In early 2001, however, the agency proposed amendments to the regulations pertaining to the “companionship services” exemption, which were subsequently abandoned. In proposing the amendments, the DOL stated:" }, { "docid": "4187034", "title": "", "text": "inconsistency between § 552.109(a) and § 552.3 and that § 552.3 is more consistent with the congressional purpose as it existed in 1974. Id. at 5485. Nonetheless, without further addressing the inconsistency, the DOL withdrew the proposed amendments in April 2002 because “numerous comment[s] on the proposed rule, including [comments offered by] multiple government agencies ... seriously called into question the Department’s conclusion that there would be little economic impact.” Application of the Fair Labor Standards Act to Domestic Service, 67 Fed. Reg. 16,668 (Apr. 8, 2002). Upon withdrawing the proposed amendments, the DOL did not question or otherwise comment upon its 2001 conclusion about what congressional intent had been in 1974. IV. The Enforceability of 29 C.F.R. § 552.6 A. Degree of deference to accord to the DOL The district court accorded Chevron deference to § 552.6’s definition of “companionship services.” Neither party in this case objects to this because the statute directed the DOL to promulgate legislative regulations to define the term “companionship services” as it appears in 29 U.S.C. § 213(a)(15), and the regulations are plainly an exercise of that authority. See Mead, 533 U.S. at 226-27, 121 S.Ct. 2164 (clarifying that Chevron deference is appropriate when a statute clearly delegates authority to an agency and the agency acts purporting to exercise that authority); Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 226 (2d Cir.2002); 29 C.F.R. § 552.2(c) (expressly stating that “[t]he definitions required by § [2]13(a)(15) are contained in §§ 552.3, 552.4, 552.5 and 552.6”). Accordingly, § 552.6 is binding on the courts unless procedurally defective, “arbitrary, capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 844, 104 S.Ct. 2778. Here, Coke argues that § 552.6 is unenforceable as being manifestly contrary to the statute. In applying Chevron deference, we follow a two-step analysis: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. When the terms of a statute are unambiguous," }, { "docid": "4187046", "title": "", "text": "In the case before us, however, because Coke does not tell us anything about what “home healthcare attendants” actually do, it is impossible for us to pass on the question of whether the particular work she did was considered by Congress to be outside the exemption. Consistent with her facial challenge to § 552.6, Coke refused to amend her complaint to be more specific about what she does. For the foregoing reasons, the regulation withstands Chevron deference on this challenge. Accordingly, we AFFIRM the district court’s ruling with respect to the enforceability of § 552.6. V. The Enforceability of 29 C.F.R. § 552.109(a) We now turn to Coke’s challenge to § 552.109(a), which applies the exemption to “companionship services” rendered by those who are employed by third parties, rather than by the family of the recipient of the services. A. Degree of deference to accord to the DOL The threshold question concerning § 552.109(a)’s enforceability is the degree of deference to be afforded the DOL. Coke argues that the district court erred by according Chevron deference to the regulations that the DOL itself calls “in terpretations.” The DOL argues that such deference was appropriate. Although the district court did not directly consider the question, it is purely one of law, which we consider de novo. See Ossen, 361 F.3d at 764. In favor of applying Chevron deference is Chevron’s own broad statement and Mead’s, endorsement of that statement: When Congress has “explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. Mead, 533 U.S. at 227, 121 S.Ct. 2164 (citation omitted) (quoting Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778). Thus, to the extent that the statute is silent on the definition of a “domestic service employee” and contains no reference to third party employers, such matters might be understood to be appropriately delegated to the DOL. An" }, { "docid": "4187051", "title": "", "text": "Mead when that Court distinguished between those regulations that are accorded Chevron deference and those that are not. In Reich v. New York, the interpretations from which Chevron deference was withheld were classified as “interpretations” by the regulations themselves. See also Freeman, 80 F.3d at 83-84 (refusing to accord Chevron deference to DOL interpretations under the FLSA despite their promulgation with notice and comment procedures); Reich v. Gateway Press, Inc., 13 F.3d 685, 699 n. 18 (3d Cir.1994) (“The DOL interpretations do not have the force of law.”). We find § 552.109(a) to be an interpretive rather than a legislative regulation. While the rule “grants rights, imposes obligations, or produces other significant effects on private interests,” as legislative regulations do, White v. Shalala, 7 F.3d 296, 303 (2d Cir.1993) (internal quotation marks omitted), a rule can only be legislative “if the agency intended to use [the legislative power delegated to it by Congress] in promulgating the rule at issue,” American Postal Workers Union, AFL-CIO v. United States Postal Serv., 707 F.2d 548, 558 (D.C.Cir.1983). Here, the DOL did not intend to use the legislative power delegated in § 213(a)(15) when it promulgated § 552.109(a). This is most apparent from its inclusion of the regulation under “Subpart B-Interpretations” as opposed to “Subpart A-General Regulations.” This appearance is supported by substance. Congress expressly delegated to the DOL authority to define terms in § 213(a)(15), and the DOL expressly states in 29 C.F.R. § 552.2(c) that “[t]he definitions required by § [2]13(a)(15) are contained in §§ 552.3, 552.4, 552.5 and 552.6.” Accordingly, the regulation at issue, § 552.109(a), is effectively conceded by the DOL not to have been promulgated pursuant to Congress’s express legislative dele gation in § 213(a)(15). Mead holds that administrative implementation of a particular statutory provision does not qualify for Chevron deference unless “it appears that the agency interpretation claiming deference was promulgated in the exercise of that authority.” 533 U.S. at 226-27, 121 5.Ct. 2164. Thus, § 552.109(a) does not qualify for Chevron deference because, by the DOL’s own account, it was self-consciously not promulgated in exercise of Congress’s" }, { "docid": "4187056", "title": "", "text": "we will defer to reasonable regulations. Skidmore, 323 U.S. at 139-40, 65 S.Ct. 161; see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 136, 117 S.Ct. 1953, 138 L.Ed.2d 327 (1997) (reasonable agency interpretations carry “at least some added persuasive force” where Chevron is inapplicable). In determining its “power to persuade,” we look to § 552.109(a)’s “consistency] with the congressional purpose,” Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974); its consistency with other regulations, see Skidmore, 323 U.S. at 140, 65 S.Ct. 161; the “consistency of the agency’s position” over time, Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977); the “thoroughness evident in [the agency’s] consideration”; and the “validity of its reasoning,” Skidmore, 323 U.S. at 140, 65 S.Ct. 161. B. Application of Skidmore Considering the regulation’s persuasiveness under Skidmore’s less deferential standard, we agree with Coke that § 552.109(a) is unenforceable. The regulation is inconsistent with Congress’s likely purpose in enacting the 1974 amendments; inconsistent with other regulations (which themselves deserve Chevron deference); and inconsistent with other agency positions over time. Moreover, the agency does not proffer valid reasoning for § 552.109(a)’s enforceability, evidencing a lack of thorough consideration. (1) Congressional purpose When Congress sought to amend the FLSA in 1974, it desired to expand FLSA coverage to “domestic service employees,” and to exempt from coverage only those “domestic service employees” engaged in “companionship services.” At the time, persons who were employed by a third party were outside the category of “domestic service employees” and were protected by the FLSA before the 1974 amendments. See Homemakers Home & Health Care Servs., Inc. v. Carden, 538 F.2d 98 (6th Cir.1976); 39 Fed.Reg. 35,385 (Oct. 1, 1974) (DOL finding that “[e]mploy-ees who are engaged in providing ... companionship services and who are employed by an employer other than the families or households using such services ... [were] subject to the [FLSA] prior to the 1974 Amendments”); 66 Fed.Reg. 5485 (Jan. 19, 2001). See generally Molly Biklen, Note, Healthcare in the Home: Reexamining the Companionship Senices Exemption" }, { "docid": "4187061", "title": "", "text": "[the Secretary of Labor] ha[s]' concluded that the [‘companionship services’] exemption can be available to such third party employers since they apply to ‘any employee’ engaged ‘in’ the enumerated services,” 40 Fed.Reg. 7404, the DOL ignored the plain language of the statute, which precluded an interpretation that the exemption could apply to “any” employee; on its face, it may apply only to employees in “domestic service employment.” 29 U.S.C. § 213(a)(15); see also 29 C.F.R. § 552.3 (defining “domestic service employment” to preclude employees of third party employers). The agency’s reasoning has not improved with time. Acknowledging the internal contradiction between § 552.109(a) and § 552.3 in its brief, the DOL today is reduced to asserting that we should uphold the regulation because other courts have done so. This is hardly an argument. As we have explained, the decisions relied upon by the DOL were all prior to the Supreme Court’s Mead decision, based on which we hold that Chevron deference is inapplicable to § 552.109(a). Thus, no other court has considered § 552.109(a) under the proper Skidmore level of deference and carefully analyzed the regulation’s “power to persuade” in accordance with the factors appropriate to Skidmore’s inquiry. Accordingly, finding that § 552.109(a) cannot survive Skidmore analysis, we decline to enforce it. We hereby VACATE the judgment of the district court upholding it, and Remand the case for further consideration consistent with this opinion. CONCLUSION For all the foregoing reasons, we AefiRM the district court’s ruling that 29 C.F.R. § 552.6 is enforceable on its face; Vacate the district court’s ruling that 29 C.F.R. § 552.109(a) is enforceable; and Remand the case for further proceedings. . We collect the full citations to such cases here in chronological order for ease of reference: McCune v. Or. Senior Servs. Div., 894 F.2d 1107 (9th Cir.1990); Cox v. Acme Health Servs., Inc., 55 F.3d 1304 (7th Cir.1995); Salyer v. Ohio Bureau of Workers’ Comp., 83 F.3d 784 (6th Cir.1996); Terwilliger v. Home of Hope, Inc., 21 F.Supp.2d 1294 (N.D.Okla. 1998); Johnston v. Volunteers of Am., Inc., 213 F.3d 559 (10th Cir.2000); Madison v." }, { "docid": "15301733", "title": "", "text": "forestry or lumbering operations are not considered agricultural employees.” ii) The standard for according deference to the DOL’s interpretation It is important for the Court to note that the DOL regulations discussed in the preceding section are mere interpretations. Even though they are published in the Code of Federal Regulations, the interpretations in question were not promulgated after a notice and comment period or after a formal adjudication. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). As the Supreme Court concluded in Skid-more v. Swift & Co., interpretive bulletins “are not, of course, conclusive even in the cases with which they directly deal... They do not constitute an interpretation of the [FLSA].. .which binds a district court’s processes, as an authoritative pronouncement of a higher court might do.” 323 U.S. 134, 139, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Nevertheless, “the [DOL’s] policies are made in pursuance of official duty, based upon more specialized experience and broader investigations than is likely to come to a judge in a particular case... The fact that the [DOL’s] policies and standards are not reached by trial in adversary form does not mean they are not entitled to respect.” Id. Therefore, “[t]he weight of such [an interpretation] in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade, if lacking the power to control.” Id. at 140, 65 S.Ct. 161. Hi) The level of deference to be accorded to the DOL’s interpretation The foregoing considered, the essential issue in this case is whether the DOL interpretations excluding Christmas tree farming from the definition of agriculture are entitled to deference pursuant to Skidmore. If the DOL interpretation is entitled to deference pursuant to Skid-more, this Court is appropriately compelled to conclude that Defendants’ employees do not fall within the agricultural exemption; on the other hand, if the DOL interpretation lacks “the power to persuade,” this Court must consider whether Defendants fall within" }, { "docid": "4187029", "title": "", "text": "i.e., does not exceed 20 percent of the total weekly hours worked. 29 C.F.R. § 552.6. A related regulation (not challenged here), also promulgated in clear exercise of the authority delegated by § 213(a)(15), adopts the House Committee Report’s definition of “domestic service employment.” That regulation states that domestic service “refers to services of a household nature performed by an employee in or about a private home ... of the person by whom he or she is employed.” 29 C.F.R. § 552.3 (emphasis added); cf. H.R.Rep. No. 93-913, at 35, U.S.Code Cong. & Admin.News at 2845 (defining “domestic service employment” to be “services of a household nature performed by an employee in or about a private home of the person by whom he or she is employed”); see also S.Rep. No. 93-690, at 20 (stating that the House’s construction of “domestic service employment” to exclude third party employment is “generally accepted”). The second regulation Coke challenges, 29 C.F.R. § 552.109(a), also promulgated soon after the 1974 amendments, expressly extends the exemption by including employees “who are employed by an employer or agency other than the family or household using their services.” Section 552.109(a) appears under the “Subpart B” heading, “Interpretations,” as opposed to the “Subpart A” heading, “General Regulations,” under which §§ 552.3 and 552.6 are listed. This regulation exempted employees who the DOL concedes were not exempt prior to the 1974 amendments. See Employment of Domestic Service Employees, 39 Fed.Reg. 35, 382, 35, 385 (proposed Oct. 1, 1974) (finding that “[e]mploy-ees who are engaged in providing ... companionship services and who are employed by an employer other than the families or households using such services” were “subject to the [FLSA] prior to the 1974 Amendments”). Prior to the promulgation of § 552.109(a), the DOL put out a different proposed rule for notice and comment: one that specifically declined to apply the “companionship services” exemption to employees of third party employers. See id. Following notice and comment on that proposed regulation, the agency reversed its position and offered the following explanation: “On further consideration, [the Secretary of Labor] ha[s] concluded" }, { "docid": "4187057", "title": "", "text": "themselves deserve Chevron deference); and inconsistent with other agency positions over time. Moreover, the agency does not proffer valid reasoning for § 552.109(a)’s enforceability, evidencing a lack of thorough consideration. (1) Congressional purpose When Congress sought to amend the FLSA in 1974, it desired to expand FLSA coverage to “domestic service employees,” and to exempt from coverage only those “domestic service employees” engaged in “companionship services.” At the time, persons who were employed by a third party were outside the category of “domestic service employees” and were protected by the FLSA before the 1974 amendments. See Homemakers Home & Health Care Servs., Inc. v. Carden, 538 F.2d 98 (6th Cir.1976); 39 Fed.Reg. 35,385 (Oct. 1, 1974) (DOL finding that “[e]mploy-ees who are engaged in providing ... companionship services and who are employed by an employer other than the families or households using such services ... [were] subject to the [FLSA] prior to the 1974 Amendments”); 66 Fed.Reg. 5485 (Jan. 19, 2001). See generally Molly Biklen, Note, Healthcare in the Home: Reexamining the Companionship Senices Exemption to the Fair Labor Standards Act, 35 Colum. Hum. Rts. L.Rev. 113, 117 (2003). It is implausible, to say the least, that Congress, in wishing to expand FLSA coverage, would have wanted the DOL to eliminate coverage for employees of third party employers who had previously been covered. (2) Consistency with other regulations and through time Section 552.109(a) is also jarringly inconsistent with other regulations the DOL itself promulgated under the FLSA immediately following the 1974 amendments. In 29 C.F.R. § 552.3, the DOL defined the term “domestic service employment” to refer “to services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed.” 29 C.F.R. § 552.3 (emphasis added). Unlike § 552.109(a), this regulation was legislative, issued pursuant to § 213(a)(15) and, thus, entitled to Chevron deference. See 29 C.F.R. § 552.2(c) (“[t]he definitions required by [§ 213(a)(15)] are contained in [] § 552.3”). Plainly, under § 552.3, employees' employed by third parties do not qualify for" }, { "docid": "22201304", "title": "", "text": "what a statute means. That kind of regulation may “persuade” a reviewing court, Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), but will not necessarily “bind” a reviewing court. Cf. Mead, 533 U. S., at 232 (“interpretive rules . . . enjoy no Chevron status as a class’’ (emphasis added)). Like respondent, the Court of Appeals concluded that the third-party regulation did not fill a statutory gap and hence was not legally binding. 376 F. 3d, at 131-133; 462 F. 3d, at 50-51. It based its conclusion upon three considerations: First, when the Department promulgated a series of regulations to implement the § 213(a)(15) exemptions, 29 CFR pt. 552, it placed the third-party regulation in Subpart B, entitled “Interpretations,” not in Subpart A, entitled “General Regulations.” Second, the Department said that regulations 552.3, .4, .5, and .6, all in Subpart A, contained the “definitions” that the statute “require[s].” Third, the Department initially said in 1974 that Subpart A would “defin[e] and delimi[t] ... the ter[m] ‘domestic service employee,’” while Subpart B would'“se[t] forth... a statement of general policy and interpretation concerning the application of the [FLSA] to domestic service employees.” 376 F. 3d, at 131-132; 462 F. 3d, at 50-51 (quoting 39 Fed. Reg. 35382). These reasons do not convince us that the Department intended its third-party regulation to carry no special legal weight. For one thing, other considerations strongly suggest the contrary, namely that the Department intended the third-party regulation as a binding application of its rule-making authority. The regulation directly governs the conduct of members of the public, “ ‘affecting individual rights and obligations.’” Chrysler Corp. v. Brown, 441 U. S. 281, 302 (1979) (quoting Morton, 415 U. S., at 232). When promulgating the rule, the agency used full public notice-and-comment procedures, which under the Administrative Procedure Act an agency need not use when producing an “interpretive” rule. 5 U. S. C. § 553(b)(A) (exempting “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” from notice- and-comment procedures). Each time the Department has considered amending the rule, it has similarly" }, { "docid": "4187033", "title": "", "text": "have been the congressional intent in 1974: [I]t clearly was Congress’ intent under the 1974 FLSA Amendments to cover all workers who performed domestic services as a vocation, excluding casual babysitters and providers of companionship services who were not regular bread winners or responsible for their [own] families’ support.... Personal and home care aides perform a variety of tasks in the home, including household work and assistance with nutrition and cleanliness. Employers have generally treated workers employed as home health aides and personal and home care aides as exempt companions, based upon the Department’s current regulations .... As a result, the Department believes it is necessary to amend the regulations to focus them on fellowship and protection duties that Congress originally intended the companion exemption to cover. Id. at 5483. The 2001 proposed amendments to the regulations would have extended FLSA protection to employees who are hired by “someone other than a member of the family in whose home he or she works.” Id. at 5482. The DOL expressly acknowledged that there exists an internal inconsistency between § 552.109(a) and § 552.3 and that § 552.3 is more consistent with the congressional purpose as it existed in 1974. Id. at 5485. Nonetheless, without further addressing the inconsistency, the DOL withdrew the proposed amendments in April 2002 because “numerous comment[s] on the proposed rule, including [comments offered by] multiple government agencies ... seriously called into question the Department’s conclusion that there would be little economic impact.” Application of the Fair Labor Standards Act to Domestic Service, 67 Fed. Reg. 16,668 (Apr. 8, 2002). Upon withdrawing the proposed amendments, the DOL did not question or otherwise comment upon its 2001 conclusion about what congressional intent had been in 1974. IV. The Enforceability of 29 C.F.R. § 552.6 A. Degree of deference to accord to the DOL The district court accorded Chevron deference to § 552.6’s definition of “companionship services.” Neither party in this case objects to this because the statute directed the DOL to promulgate legislative regulations to define the term “companionship services” as it appears in 29 U.S.C. § 213(a)(15), and" }, { "docid": "4187053", "title": "", "text": "delegated authority pursuant to § 213(a)(15). The DOL places emphasis on the fact that in 1974 § 552.109(a) was promulgated after notice and comment and, indeed, Mead explicitly instructs us to consider whether a rule was the product of notice and comment in assessing whether to accord it Chevron deference. Mead, 533 U.S. at 230-31, 121 S.Ct. 2164. However, “while notice and comment are required for legislative rules, they are by no means prohibited for interpretive rules.” Mejia-Ruiz v. INS, 51 F.3d 358, 365 (2d Cir.1995). Mead does nothing to undermine this conclusion. See Mead, 533 U.S. at 230-31, 121 S.Ct. 2164; Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 Admin. L.Rev. 807, 814 (2002) (“I do not think the Court was saying [in Mead ] ... that if an agency adopts notice- and-comment or trial-type hearing procedures on its own authority, its interpretation is presumptively entitled to Chevron deference.” (emphasis removed and emphasis added; citations omitted)). In this case, the agency undertook a notice and comment procedure for an interpretative regulation despite the fact that the procedure was not required. While Mead does not offer specific guidance on whether putting a proposed interpretation out for notice and comment has any effect on deference, following the notice and comment procedure, at most, buttresses a claim that the agency gave consideration to what it did; it does not alter the fact that the agency did not act pursuant to legislative authority. In any event, here we cannot ignore that the notice and comment procedure for § 552.109(a) was at best idiosyncratic and at worst insufficient. The original notice informed the public that employees of third party employers were not going to be exempt from the FLSA (consistent with § 552.3), see 39 Fed.Reg. 35,385 (proposed Oct. 1, 1974), but the final rule provided exactly the opposite without a detailed explanation, see 40 Fed.Reg. 7405 (Feb. 20, 1975). Because we conclude that § 552.109(a) is interpretative, and thus need not have conformed with notice and comment procedures, we have no occasion to decide whether this regulation is" }, { "docid": "4187049", "title": "", "text": "[agency] interpretation is the one intended by Congress.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986). Finally, when an agency action is “ ‘the fruit[ ] of notice-and-comment rule-making or formal adjudication,’ ” courts generally accord the agency Chevron deference. Chao, 291 F.3d at 227 (quoting Mead, 533 U.S. at 230, 121 S.Ct. 2164). Here, no one contests that, although the agency calls § 552.109(a) an “interpretation,” it was promulgated following notice and comment procedures. However, it is also true (and a cause of concern) that the rule the agency adopted after comments were received was the opposite of the rule proposed in the original notice. There was no separate notice and comment on the rule as ultimately adopted. All courts that have considered § 552.109(a) have accorded it Chevron deference. See, e.g., Johnston, 213 F.3d at 561-62; Terwilliger v. Home of Hope, Inc., 21 F.Supp.2d at 1299 n. 2. But Coke is correct that none of these prior cases carefully considered the question before us now: Does Mead, which post-dates the cases affording § 552.109(a) Chevron deference, require a different analysis yielding a different result insofar as it holds that some agency regulations should be accorded less than Chevron deference? Coke argues that Mead requires us to apply a lesser degree of deference to § 552.109(a) as an “interpretive,” rather than a “legislative” regulation. Indeed, “interpretive rules ... enjoy no Chevron status as a class.” Mead, 533 U.S. at 232, 121 S.Ct. 2164. This circuit, even before the Supreme Court’s clarification in Mead, contemplated that interpretive regulations should not receive full Chevron deference. In Reich v. New York, 3 F.3d 581, 587 (2d Cir.1993), we considered DOL regulations promulgated to define and delimit the administrative exemption in the FLSA at 29 U.S.C. § 213(a)(1). We held, “In contrast to the controlling authority given the [DOL’s] legislative rules — i.e., those promulgated pursuant to an express grant of Congressional authority — the respect accorded the [DOL’s] interpretive regulations depends upon their persuasiveness ...Id. We foretold the precise distinction later drawn in" }, { "docid": "4187021", "title": "", "text": "JOHN M. WALKER, JR., Chief Judge: At issue in this appeal is the enforceability of two regulations promulgated by the Department of Labor (“DOL”) that define and interpret the “companionship services” exemption in the Fair Labor Standards Act (“FLSA” or “the Act”), 29 U.S.C. § 213(a)(15). The Act generally requires minimum wage and overtime compensation; the “companionship services” exemption relieves employers from paying such compensation to those employees who work in domestic service as babysitters and companions to the elderly and infirm. The regulations at issue implement the exemption with respect to companions. The first regulation we consider is a regulation that defines the exemption. It includes within the exemption (1) those who perform household work related to the care of the elderly or infirm and (2) those who also perform housework incidental to their “companionship services” as long as the housework accounts for less than twenty percent of the weekly hours worked. See 29 C.F.R. § 552.6. The second regulation we consider applies the exemption to “[e]mployees who are engaged in providing companionship services, as defined in § 552.6, and who are employed by an employer or agency other than the family or household using their services.” See 29 C.F.R. § 552.109(a). The district court found both of these regulations to be entitled to the highest form of deference available to agency regulations and, accordingly, found them legally enforceable. See Coke v. Long Island Care at Home, Ltd., 267 F.Supp.2d 332 (E.D.N.Y.2003). We affirm the enforceability of the first regulation, § 552.6, according it the highest level of deference available to agencies pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). But we conclude that the second regulation, § 552.109(a), is neither entitled to Chevron deference nor enforceable; we find it to be entitled only to the more limited level of deference announced in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), and reaffirmed in United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)." }, { "docid": "4187052", "title": "", "text": "the DOL did not intend to use the legislative power delegated in § 213(a)(15) when it promulgated § 552.109(a). This is most apparent from its inclusion of the regulation under “Subpart B-Interpretations” as opposed to “Subpart A-General Regulations.” This appearance is supported by substance. Congress expressly delegated to the DOL authority to define terms in § 213(a)(15), and the DOL expressly states in 29 C.F.R. § 552.2(c) that “[t]he definitions required by § [2]13(a)(15) are contained in §§ 552.3, 552.4, 552.5 and 552.6.” Accordingly, the regulation at issue, § 552.109(a), is effectively conceded by the DOL not to have been promulgated pursuant to Congress’s express legislative dele gation in § 213(a)(15). Mead holds that administrative implementation of a particular statutory provision does not qualify for Chevron deference unless “it appears that the agency interpretation claiming deference was promulgated in the exercise of that authority.” 533 U.S. at 226-27, 121 5.Ct. 2164. Thus, § 552.109(a) does not qualify for Chevron deference because, by the DOL’s own account, it was self-consciously not promulgated in exercise of Congress’s delegated authority pursuant to § 213(a)(15). The DOL places emphasis on the fact that in 1974 § 552.109(a) was promulgated after notice and comment and, indeed, Mead explicitly instructs us to consider whether a rule was the product of notice and comment in assessing whether to accord it Chevron deference. Mead, 533 U.S. at 230-31, 121 S.Ct. 2164. However, “while notice and comment are required for legislative rules, they are by no means prohibited for interpretive rules.” Mejia-Ruiz v. INS, 51 F.3d 358, 365 (2d Cir.1995). Mead does nothing to undermine this conclusion. See Mead, 533 U.S. at 230-31, 121 S.Ct. 2164; Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 Admin. L.Rev. 807, 814 (2002) (“I do not think the Court was saying [in Mead ] ... that if an agency adopts notice- and-comment or trial-type hearing procedures on its own authority, its interpretation is presumptively entitled to Chevron deference.” (emphasis removed and emphasis added; citations omitted)). In this case, the agency undertook a notice and comment procedure for an" }, { "docid": "2896265", "title": "", "text": "grooms, and chauffeurs of automobiles for family use. H.R.Rep. No.93-913, 93rd Cong., 2d Sess., reprinted in (1974) U.S.Code Cong. & Ad.News 2811, 2845. The legislative history also “reveals that Congress used the term ‘domestic service employment’ interchangeably with the terms ‘domestic service in households,’ ‘private household workers,’ and ‘household employment.’” Lott v. Rigby, 746 F.Supp. 1084, 1088 (N.D.Ga.1990)(citing H.R.Rep. No. 913, 93rd Cong., 2nd Sess., reprinted in, 1974 U.S.Code Cong. & Admin. News 2811, 2842-2843). The DOL has incorporated the legislative history into 29 C.F.R. § 552.3 (“Section 552.3”) which states that domestic service “refers to services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed.” 29 C.F.R. § 552.3. Importantly however, through 29 C.F.R. § 552.109(a) (“Section 552.109(a)”) the DOL extends the exemption to “[e]mployees who are engaged in providing companionship services, as defined by § 552.6, and who are employed by an employer or agency other than the family or household using their services.” 29 C.F.R. § 552.109(a)(empha-sis added.) C. Validity of Sections 552.6 and 552.109(a) Plaintiff argues that both of these regulations are inconsistent with Congress’s intent of extending coverage of the FLSA to domestic service employees. Specifically, Plaintiff argues that the definition of “companionship services” in Section 552.6 is overbroad and that Section 552.109(a) improperly extends the exemption to employees who are employed by an agency. In regards to Section 552.109(a), Plaintiff asserts that prior to the 1974 amendments home healthcare employees employed by certain agencies would have been covered by “enterprise coverage” as set forth in 29 U.S.C. §§ 203(r), 203(s), 206(a), 207(a), which extends FLSA coverage to all employees of businesses that exceed a certain gross revenue. Plaintiff cites Homemakers Home and Health Care v. Carden, 538 F.2d 98 (6th Cir.1976) to support her position. In that case the Sixth Circuit upheld a stipulated finding of fact that the plaintiff, who was a home health care services company, was subject to FLSA enterprise coverage. Plaintiff reasons that in enacting the 1974 amendments Congress intended to extend" } ]

[ { "docid": "23488017", "title": "", "text": "and capable trial counsel believed the case would settle for around $1.5 million. In that event Mrs. Soppe’s claim would not have implicated Lexington’s coverage. If the jury credited this testimony, it had reasonable grounds for believing that the duty to notify did not commence until soon before the actual, December, 1983 notice. As we have intimated, the jury also had grounds for believing that HUP’s duty to notify commenced months, even years, before this date. In view of the conflicting testimony, however, we believe the issue of late notice was properly a question for the jury. Lexington next claims that the district court improperly instructed the jury regarding the meaning of late notice under the policy. The district court’s instructions on the meaning of the policy were as follows: [T]he policy provides that the notice of the potential claim is to be given only when the insured reasonably believes that a claim might involve Lexington’s coverage. Not that a claim has been made, but only in the event that it’s going to involve Lexington. Thus, it leaves that determination of the potential value to the insured, not to the insurance company. As I mentioned earlier, Lexington then has the burden of proving by a preponderance of the evidence that the Trustees of the University and its agents had no reasonable basis for their doubt that the claim of Estelle Soppe would reach the insurance provided by the Lexington policy- (emphasis supplied). Construction of an insurance policy, like construction of any contract, is a matter of law so long as a court may fairly read it without ambiguity. Ram Construction Co., v. American States Ins. Co., 749 F.2d 1049, 1052-58 (3d Cir.1984); cf. Cooper Lab. v. International Surplus Lines Ins. Co., 802 F.2d 667, 671 (3d Cir. 1986) (distinction between law and fact in contract case is matter of federal law). We believe that the district court’s instruction was in error. Despite the policy’s tortured phrasing, it unambiguously sets out an objective standard for the time at which notice was required. The policy required notice whenever the Insured had information" } ]

[ { "docid": "10542531", "title": "", "text": "underwriters required Olin to obtain a report summarizing the risks of environmental liability from Environmental Risk Assessment Service (USA), Ltd. That report, which Olin’s Insurance Department reviewed, recommended that any EIL coverage afforded Olin exclude any claims arising out of the Saltville mercury contamination. See id,., Ex. 33. Discussion “Under New York law, compliance with a notice-of-occurrence provision in an insurance policy is a condition precedent to an insurer’s liability under the policy.” Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987) (citations omitted). Late notice is a complete defense whether or not the insurance company was prejudiced by the delay. Utica Mutual Ins. v. Fireman’s Fund Ins. Cos., 748 F.2d 118, 121 (2d Cir.1984); Ogden Corp. v. Travelers Indemnity Co., 739 F.Supp. 796 (S.D.N.Y.1989). Compliance with notice-of-occurrence requirements promotes important policy goals: Notice-of-occurrence provisions ... enable insurers to make a timely investigation of relevant events and exercise early control over a claim. Early control may lead to settlement before litigation and enable insurers to take steps to eliminate the risk of similar occurrences in the future. Commercial Union, 822 F.2d at 271 (citations omitted); see also Utica Mutual, 748 F.2d at 121 (“Prompt notice permits the insurer to investigate the facts on which the claim is predicated and to adjust its books in order to maintain a proper reserve fund in light of the insured’s claim.”) There are two questions that courts must answer in evaluating late notice defenses. First, a court must decide when the obligation to give notice accrued. Courts have consistently held that the obligation to provide notice accrues when “the circumstances known to the insured at that time would have suggested to a reasonable person the possibility of a claim.” Commercial Ins., 822 F.2d at 272 (citations omitted). New York law applies an objective test, asking what the insured’s officers “reasonably could or should have concluded.” Utica Mutual, 748 F.2d at 122. Second, a court must then decide whether the insured did in fact provide timely notice. Whether the insurance policy provided for “immediate notice” or notice “as" }, { "docid": "4042207", "title": "", "text": "as a motion for reargument and denied it as untimely. See Local Civil Rule 3(j) (motions for reargument must be served within ten days of the court’s docketing of its decision). Yet in denying the motion, Judge Sand also stated that even if timely, he would deny the motion as merit-less since it “seeks to recanvass issues already decided by the court.” Because Judge Sand viewed the first-wave/second-wave distinction as merely a new spin on Olin’s previous arguments, we will exercise our discretion to address it. B. When was Olin’s Obligation to Notify Hanover of the Second-Wave Lawsuits Triggered? Olin agrees that New York law applies. Under New York law, an insured’s failure to comply with a notice-of-occurrence provision is generally a complete defense even if the insurer was not prejudiced by the untimely notification. See Utica Mut. Ins. Co. v. Fireman’s Fund Ins. Cos., 748 F.2d 118, 121 (2d Cir.1984). “[Compliance with a notice-of-oecurrenee provision in an insurance policy is a condition precedent to an insurer’s liability under the policy.” Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987). Notice-of-occurrence provisions allow insurance companies- to make an early investigation into the particular circumstances of an occurrence, both as an aid to future litigation and as a means of ending or correcting dangerous conditions. Additionally, timely notice of occurrence assists insurers in estimating the amount of capital they need in reserve for future claims, and the amounts they must charge as premiums. Finally, these provisions aid insurers in the detection of fraudulent claims. See id.; Utica Mutual, 748 F.2d at 121; Heydt Contracting Corp. v. American Assurance Co., 146 A.D.2d 497, 536 N.Y.S.2d 770, 772, appeal dismissed, 74 N.Y.2d 651, 542 N.Y.S.2d 520, 540 N.E.2d 715 (1989); Power Authority v. Westinghouse Electric Corp., 117 A.D.2d 836, 502 N.Y.S.2d 420, 421-22 (1986). In assessing an insurer’s claim of an untimely notice of occurrence, “[t]he test for determining whether the notice provision has been triggered is whether the circumstances known to the insured at that time would have suggested to a reasonable person the possibility" }, { "docid": "22989733", "title": "", "text": "involve reinsurance. Cf. Insurance Co. of Pennsylvania v. Associated Int’l Ins. Co., 922 F.2d 516, 521-22 (9th Cir.1990) (where reinsured notified by original insured that reinsured’s excess layer might become involved by virtue of number of claims instituted, court rejects reinsured’s argument that notice obligation met to reinsurer by providing prompt notice once informed underlying limits were nearing exhaustion). B. When Should Notice Be Given A reinsured’s decision to set reserves, necessarily a subjective determination, is not the only basis upon which it may be concluded the duty to provide notice to reinsurers was triggered, which is an objective determination. Clauses in insurance contracts requiring “prompt notice,” notice “as soon as practicable,” or “immediate notice” are generally construed to require notice within a reasonable time after the duty to give notice has arisen. See Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 441, 340 N.Y.S.2d 902, 293 N.E.2d 76 (1972). When the duty to provide such notice commences requires an objective evaluation of the facts known to the insured. See Utica Mutual Ins. Co. v. Fireman’s Fund Ins. Cos., 748 F.2d 118, 122 (2d Cir.1984). The objective standard is one of reasonableness. While the duty to provide notice therefore does not begin on the basis of mere speculation, rumor, or remote contingencies far removed from the particular policy in question, see Acker-Fitzsimons, 31 N.Y.2d at 442, 340 N.Y.S.2d 902, 293 N.E.2d 76, when an insured complying with its duty to use due diligence in inyestigat- ing potential claims against it would believe from the information available that its policy would be involved, the notice obligation arises. See Ogden Corp. v. Travelers Indemnity Co., 924 F.2d 39, 43 (2d Cir.1991); International Flavors, 822 F.2d at 272; Utica Mutual, 748 F.2d at 121-22. See also Trustees of Univ. of Pennsylvania v. Lexington Ins. Co., 815 F.2d 890, 896 (3d Cir.1987); Liberty Mutual Ins. Co. v. Gibbs, 773 F.2d 15, 17-18 (1st Cir.1985); Greyhound Corp. v. Excess Ins. Co. of Am., 233 F.2d 630, 635 (5th Cir.1956). A provision requiring notice when it “appears likely” that a claim will or “may”" }, { "docid": "11712876", "title": "", "text": "Both clauses above provide for two types of notice: notice of occurrence and notice of claim or suit. The insurers’ argument is directed to the notice of occurrence provision. “Under New York law, ... compliance with the notice of occurrence requirement [is] a condition precedent to all of [an insurers] duties under the policy, including the duty to defend.” Commercial Union Ins. Co. v. Int’l Flavors & Fragrances, Inc., 822 F.2d 267, 271-73 (2d Cir.1987). Both policies at issue required the insureds to notify the insurer in writing “as soon as practicable” after the insured becomes aware of an “occurrence” (as distinguished from a claim or suit where notice is supposed to be immediate). “The test for determining whether [a notice of occurrence] provision has been triggered is whether the circumstances known to the insured at that time would have suggested to a reasonable person the possibility of a claim.” Id. at 272. There can be little dispute that the circumstances in 1981 would suggest to a reasonable person the possibility of a claim. First, the state and the individual plaintiffs had actually filed suits on state law grounds. (See the 1981 Summons and complaint contained at exhibit one of Lumbermen’s Appendix) Second, and more telling, the insureds provided another insurer, Atlantic, with notice of the 1981 “occurrence”. (See pages 30-31 of the Insureds’ Memo of law) Having been apprised of the possibility of a claim in 1981, the insureds had the duty to notify the insurers “as soon as practicable” thereafter. The provision that notice be given “as soon as practicable” after an occurrence merely requires that notice be given within a reasonable time under all the circumstances. Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 441, 340 N.Y.S.2d 902, 906, 293 N.E.2d 76, 79 (1972). Ordinarily, the reasonableness of any delay is a matter for trial. In the absence of an excuse or mitigating factors, however, the issue is a legal one for the court; and, in such circumstances, relatively short periods have been found to be unreasonable as a matter of law. Jenkins v. Burgos," }, { "docid": "10542534", "title": "", "text": "Underwriters, 588 F.Supp. 1103, 1105 (S.D.N.Y.1984) (two years); Power Authority v. Westinghouse Electric Corp., 117 A.D.2d 336, 502 N.Y.S.2d 420, 423 (N.Y.App.Div.1986) (53 days); Government Employers Ins. Co. v. Elman, 40 A.D.2d 994, 338 N.Y.S.2d 666 (N.Y.App.Div.1972) (29 days); Peerless Ins. Co. v. Nationwide Ins. Co., 12 A.D.2d 602, 208 N.Y.S.2d 469 (N.Y.App.Div.1960) (four to five months); Deso v. London & Lancashire Indemn. Co., 3 N.Y.2d 127, 164 N.Y.S.2d 689, 692, 143 N.E.2d 889, 891 (1957) (51 days). Olin argues that the explicit terms of the insurance contracts with IN A require it to provide notice “[ujpon the happening of an occurrence or accident that appears reasonably likely to involve liability on the part of [INA].” As we noted above, that language did not apply to the Saltville insurance coverage. However, even if that language did cover the Saltville mercury pollution matter, we do not believe that it imposes a materially different obligation on the insured than the Commercial Union standard quoted above. Olin’s obligation to notify its excess insurers is slightly different from its obligations to notify its primary carriers: In primary liability insurances the insurer uniformly undertakes to investigate and defend any claim covered by the policy. , Consequently such policies regularly require that the assured give to the company immediate notice of any accident or claim involving the insurance. However, in excess liability insurances (as well as in most liability insurances written over a substantial deductible) the excess insurer does not undertake to defend the assured. Consequently, the excess insurer is not interested in every accident, but only in those that may be serious enough to involve it. Excess policies, therefore, usually require an assured to give notice of claims “that appear likely to involve the excess.” Greyhound Corp. v. Excess Ins. Co., 233 F.2d 630, 634 (5th Cir.1956) (quoting 21 Ins. Counsel J. 131). Therefore, Olin’s duty to notify each excess insurer accrued when the circumstances known to Olin would have suggested a reasonable possibility of a claim that would trigger that excess insurer’s coverage. See Harbor Ins. Co. v. Trammell Crow Co., 854 F.2d 94," }, { "docid": "5370517", "title": "", "text": "any portion of the defense costs incurred to date. D. Late Notice AMICO and National Union each contend that Avondale’s failure to timely inform it of the existence of pollution at the Site, and of the claims filed in the underlying actions, absolves it of any duty to defend or indemnify Avondale. National Union’s and AMICO’s policies each provide: In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and address of the injured and of available witnesses shall be given by or for the insured to [the insurer] as soon as practicable. If claim is made or suit is brought against the insured, the insured shall immediately forward to the [insurer] every demand, notice, summons or other process received by him or his representative. (Sweet Affid., Ex. A at 1293; Monteleone Affid., Ex. A. at 2529, 10300.) An insured’s duty to notify its insurer of an “occurrence” arises when “the circumstances known to the insured at that time would have suggested to a reasonable person the possibility of a claim” against the insured. Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 272 (2d Cir.1987). Under New York law, compliance with a notice-of-occurrence provision is a condition precedent to an insurer’s duty to provide coverage, Id. at 271, and failure to comply with the notice requirement relieves the insurer of its duty to defend and its duty to indemnify, even where there has been no showing that the insurer has been prejudiced by the delay. Utica Mutual Ins. Co. v. Fireman’s Fund Ins. Co., 748 F.2d 118, 121 (2d Cir.1984); Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 905, 293 N.E.2d 76, 78 (1972); Power Authority v. Westinghouse Elec. Corp., 117 A.D.2d 336, 339, 502 N.Y.S.2d 420, 422 (1st Dep’t 1986). It is undisputed that Avondale was on notice that it had been implicated in pollution at the Site no later than January 1986, when the Louisiana" }, { "docid": "5370518", "title": "", "text": "to the insured at that time would have suggested to a reasonable person the possibility of a claim” against the insured. Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 272 (2d Cir.1987). Under New York law, compliance with a notice-of-occurrence provision is a condition precedent to an insurer’s duty to provide coverage, Id. at 271, and failure to comply with the notice requirement relieves the insurer of its duty to defend and its duty to indemnify, even where there has been no showing that the insurer has been prejudiced by the delay. Utica Mutual Ins. Co. v. Fireman’s Fund Ins. Co., 748 F.2d 118, 121 (2d Cir.1984); Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 905, 293 N.E.2d 76, 78 (1972); Power Authority v. Westinghouse Elec. Corp., 117 A.D.2d 336, 339, 502 N.Y.S.2d 420, 422 (1st Dep’t 1986). It is undisputed that Avondale was on notice that it had been implicated in pollution at the Site no later than January 1986, when the Louisiana Attorney General sent Avondale the “potentially responsible party” letter. It is also undisputed that the underlying private actions arise out of the same occurrence as was brought to Avon-dale’s attention in the PRP letter. See New York v. AMRO Realty Corp., 936 F.2d 1420, 1430 and n. 10 (2d Cir.1991); Olin Corp. v. Ins. Co. of North America, 743 F.Supp. 1044, 1054-55 (S.D.N.Y.1990), aff'd, 929 F.2d 62 (2d Cir.1991) (per curium). Avondale first received notice of at least one of the private actions against it no later than August 1986. (August 20, 1986 letter from Robert Holden to Richard Reinga, attached as exhibit to October 31, 1990 letter from Paul McDonald to Court.) It is uneontroverted that Avondale notified AMICO and National Union of the occurrence and claims in mid-March 1987, at the earliest (Monteleone Affid., Ex F; Wildey Affid., Ex. A.), at about the time that Travelers served them with the third-party complaint in this action. If no mitigating circumstances or reasonable explanation can be demonstrated, this fourteen month delay in notifying AMICO and" }, { "docid": "5370525", "title": "", "text": "policies. See also Ogden Corp. v. Travelers Indem. Co., 924 F.2d 39, 43 (2d Cir.1991) (“The test for determining whether notice of occurrence must be given to a particular insurer ‘is whether the circumstances known to the insured at that time would have suggested to a reasonable person the possibility of a claim [against that insurer].’ ”) (quoting Commercial Union v. International Flavors & Fragrances, Inc., 822 F.2d 267, 272 (2d Cir. 1987), bracketed material supplied by Ogden court). While “an unexplained failure to exercise due diligence to ascertain coverage manifests failure to meet the notice requirements as a matter of law,” Young Health Center v. Dep’t of Ins., 152 A.D.2d at 836, 543 N.Y.S.2d at 769, and an “insured may not, without investigation, gratuitously conclude that it need not ... report[ ] ... an accident ... which may fall within the coverage of an insurance policy,” Aetna Ca. & Surety Co. v. Lanza, 70 A.D.2d 508, 509, 415 N.Y.S.2d 859, 860 (1st Dep’t 1979) (emphasis added) (citing Empire City Subway Co. v. Greater New York Mutual Ins. Co., 35 N.Y.2d 8, 13-14, 358 N.Y.S.2d 691, 694-95, 315 N.E.2d 755, 757-58 (1974)), the nature and adequacy of the insured’s investigation is a matter to be explored at trial. See Mobile Home Estates, Inc. v. Preferred Mutual Ins. Co., 105 A.D.2d at 884, 482 N.Y.S.2d at 356 (reasonableness of insured’s belief that it faces no liability is affected by extent of inquiry conducted by insured into circumstances of the occurrence). We do not believe the record here permits a finding on summary judgment that Avondale’s failure to notify AMICO was as a matter of law unreasonable or the product of inadequate investigation. As to AMICO, we thus hold that there is a question of fact to be resolved at trial whether Avondale’s delay in providing notice of the occurrence and claims was justifiable and excusable. There is evidence in the record which would support the inference that a diligent investigation by Avondale into its waste disposal practices could reasonably have concluded that Avondale had shipped no waste oil to the Site" }, { "docid": "5370524", "title": "", "text": "of coverage must be “justifiable” to excuse late notice). It follows that where an insured has a reasonable belief, formed after an adequate investigation, that no claim arising out of the occurrence could fall within the coverage period of a particular insurer, a jury could find that the insured’s late notice to that insurer was justifiable and excusable. The line of cases holding that late notice may be excused where the insured reasonably and in good faith believed that it faced no possibility of liability arising out of the occurrence, e.g., Arch-Built Container Corp. v. Interboro Mutual Indem. Ins. Co., 119 A.D.2d 713, 501 N.Y.S.2d 127 (2d Dep’t 1986); Mobile Home Estates, Inc. v. Preferred Mutual Ins. Co., 105 A.D.2d 883, 482 N.Y.S.2d 355 (3d Dep’t 1984); Allstate v. Moon, 89 A.D.2d at 805, 453 N.Y.S.2d at 469, also supports the conclusion that late notice to a particular insurer might be excused by an insured’s reasonable and good faith belief that an occurrence could lead to no liability that would be indemnifiable under that insurer’s policies. See also Ogden Corp. v. Travelers Indem. Co., 924 F.2d 39, 43 (2d Cir.1991) (“The test for determining whether notice of occurrence must be given to a particular insurer ‘is whether the circumstances known to the insured at that time would have suggested to a reasonable person the possibility of a claim [against that insurer].’ ”) (quoting Commercial Union v. International Flavors & Fragrances, Inc., 822 F.2d 267, 272 (2d Cir. 1987), bracketed material supplied by Ogden court). While “an unexplained failure to exercise due diligence to ascertain coverage manifests failure to meet the notice requirements as a matter of law,” Young Health Center v. Dep’t of Ins., 152 A.D.2d at 836, 543 N.Y.S.2d at 769, and an “insured may not, without investigation, gratuitously conclude that it need not ... report[ ] ... an accident ... which may fall within the coverage of an insurance policy,” Aetna Ca. & Surety Co. v. Lanza, 70 A.D.2d 508, 509, 415 N.Y.S.2d 859, 860 (1st Dep’t 1979) (emphasis added) (citing Empire City Subway Co. v. Greater New" }, { "docid": "22989736", "title": "", "text": "F.Supp. at 155 (emphasis added). A “theoretical possibility” that a policy will not be involved is not an objectively reasonable basis upon which to conclude a claim does not “appear likely” to involve the policy. Nor may Great American be excused for a failure to provide notice because of a possibility — for example, that INA’s and Honda’s information was inaccurate — that the reinsurance would not be implicated if, despite the existence of other factors suggesting the reinsurance would be implicated, no investigation was undertaken that would negate that possibility. See Acker-Fitzsimons, 31 N.Y.2d at 442-43, 340 N.Y.S.2d 902, 293 N.E.2d 76; Utica Mutual, 748 F.2d at 122. Defendant cannot complain that it did not see something when it shut its eyes. The evidence, viewed in the light most favorable to Christiania, demonstrates a reasonable insured in defendant’s position could have believed it “appeared' likely” the claims that it was being told about would involve Christiania’s reinsurance — i.e. its obligation to give notice occurred — prior to April 1987. Defendant’s response is that the reinsurance certificates should not be construed so as to have required notice prior to that date. The argument is that it had no obligation continually to monitor claims in an effort to ascertain, in advance of its layer being pierced on a paid basis, which claims would become its responsibility and when. We think the monitoring issue is one for a jury to resolve. Cf. Acker-Fitzsimons, 31 N.Y.2d at 441, 340 N.Y.S.2d 902, 293 N.E.2d 76 (insured must exercise reasonable care and diligence to keep informed of accidents out of which claims may arise). The thrust of defendant’s contention is it was not possible for it to provide the type of detailed information it provided to its reinsurers at the August 27 meeting until it completed an audit, and it would have been overly burdensome and wasteful for it to have had to undertake such an audit far in advance of its layer being pierced on a paid basis. The problem with this assertion is that- it rests on the unstated and unsupported premise" }, { "docid": "11771496", "title": "", "text": "584 N.Y.S.2d 290, 292, 594 N.E.2d 571, 573 (1992) (\"It is settled New York law that ... the insurer need not show prejudice to rely on the defense of late notice.”) (citation omitted); Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 904-05, 293 N.E.2d 76, 78 (1972) (same); Olin Corp. v. Insurance Co. of North America, 966 F.2d 718, 723 (2d Cir.1992) (\"Under New York law, an insured’s failure to comply with a notice-of-occurrence provision is generally a complete defense even if the insurer was not prejudiced by the untimely notification.”); Utica Mut. Ins. Co. v. Fireman’s Fund Ins. Cos., 748 F.2d 118, 121 (2d Cir.1984) (same). . Accord Unigard Sec. Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 584 N.Y.S.2d 290, 292, 594 N.E.2d 571, 573 (1992); AXA Marine & Aviation Ins. (UK) Ltd. v. Seajet Indus. Inc., 84 F.3d 622, 624-25 (2d Cir.1996); Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987). . The record demonstrates that Hartford did not \"monitor\" the Press litigation. In the same month that Sybron notified Hartford of the Press litigation, Hartford was sent a copy of a letter from Security to Sybron that requested Sybron to notify Hartford. Thus, Hartford received the first correspondence from Security some 21 months after the Press claims were initiated. Subsequent to this initial letter, Hartford received copies of other materials related to the Press suits. . An insurer has a statutory duty to disclaim liability for injuries that arise out of accidents that occur within the State of New York. See N.Y. Ins. Law § 3420(d); American Home Assurance Co., 984 F.2d at 79. Dr. Press was injured in Pennsylvania. . Under New York law, an insurer may be es-topped from asserting late notice if it delayed its disclaimer for an unreasonable amount of time and if the insured was prejudiced as a result. See American Home Assurance Co., 984 F.2d at 79. In this case, Sybron was not prejudiced by Hartford's failure to deny coverage. . Estoppel thus is to be" }, { "docid": "4042208", "title": "", "text": "v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987). Notice-of-occurrence provisions allow insurance companies- to make an early investigation into the particular circumstances of an occurrence, both as an aid to future litigation and as a means of ending or correcting dangerous conditions. Additionally, timely notice of occurrence assists insurers in estimating the amount of capital they need in reserve for future claims, and the amounts they must charge as premiums. Finally, these provisions aid insurers in the detection of fraudulent claims. See id.; Utica Mutual, 748 F.2d at 121; Heydt Contracting Corp. v. American Assurance Co., 146 A.D.2d 497, 536 N.Y.S.2d 770, 772, appeal dismissed, 74 N.Y.2d 651, 542 N.Y.S.2d 520, 540 N.E.2d 715 (1989); Power Authority v. Westinghouse Electric Corp., 117 A.D.2d 836, 502 N.Y.S.2d 420, 421-22 (1986). In assessing an insurer’s claim of an untimely notice of occurrence, “[t]he test for determining whether the notice provision has been triggered is whether the circumstances known to the insured at that time would have suggested to a reasonable person the possibility of a claim.” Commercial Union, 822 F.2d at 272. Moreover, a policy stating that notice of an occurrence be given “as soon as practicable ... requires that notice be given within a reasonable time under all the circumstances.” Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 441, 340 N.Y.S.2d 902, 293 N.E.2d 76 (1972); see also Power Authority, 502 N.Y.S.2d at 422. In some cases, even short delays will render a notice untimely. See, e.g., Deso v. London & Lancashire Indem. Co., 3 N.Y.2d 127, 130, 164 N.YN2d 689, 143. N.E.2d 889 (1957) (fifty-one days); Rushing v. Commercial Casualty Ins. Co., 251 N.Y.302, 304, 167 N.E. 450 (1929) (twenty-two days). As noted, the first DDT-related lawsuit against Olin was filed on July 9,1979. Yet it was not until November 16, 1981, two and a half years later, and twenty months after Olin had notified two of its other primary carriers, that Olin sent a notice of occurrence to Hanover. We agree with the district court that this delay was unreasonable as a matter" }, { "docid": "23597016", "title": "", "text": "that it maintained a “good faith” belief in non-liability under the policy. New York courts have held that an insured’s good faith belief in non-liability may excuse delay in notifying its insurer of the occurrence. See, e.g., E.T. Nutrition Inc. v. Central Mut. Ins. Co., 201 A.D.2d 451, 452, 607 N.Y.S.2d 392, 393 (2d Dept.1994); Beach Haven Apartments, No. 6, Inc. v. Allcity Ins. Co., 182 A.D.2d 658, 659, 581 N.Y.S.2d 689, 698 (2d Dept.1992); see also Mount Vernon Fire Ins. Co. v. Creative Hous. Ltd., 797 F.Supp. 176, 185 (E.D.N.Y.1992). These cases, however, are distinguishable. They involved the failure of an insured to notify an insurer of an occurrence. This case involves not only the failure to notify an insurer of an occurrence but also failure to notify of a claim. The cases excusing an insured’s failure to notify an insurer of an occurrence based on a good faith belief of non-liability are supported by the rationale that if insureds were required to notify insurers of every incident that poses even a remote possibility of liability, insurers would soon be swamped with notice of minor incidents that pose little danger of resulting even in an action by the injured party against the insured, let alone a claim by the insured against the insurer. See Christiania, 979 F.2d at 275 (insured’s duty to provide notice will not arise under New York law “on the basis of mere speculation, rumor, or remote contingencies far removed from the particular policy in question”). In Beach Haven Apartments, for example, the insured provided notice to the insurer soon after a claim was filed. Beach Haven Apartments, 182 A.D.2d at 659, 581 N.Y.S.2d at 690. Once there is a reasonable possibility that the policy will be involved, however, this rationale is no longer applicable. See Christiania, 979 F.2d at 276 (knowledge that claim was likely, though not yet actually filed, sufficient to trigger the duty of notice); see also Ogden Corp. v. Travelers Indem. Co., 924 F.2d 39, 43 (2d Cir.1991). It is true that the insurer may believe in good-faith that it would prevail" }, { "docid": "22989734", "title": "", "text": "Co. v. Fireman’s Fund Ins. Cos., 748 F.2d 118, 122 (2d Cir.1984). The objective standard is one of reasonableness. While the duty to provide notice therefore does not begin on the basis of mere speculation, rumor, or remote contingencies far removed from the particular policy in question, see Acker-Fitzsimons, 31 N.Y.2d at 442, 340 N.Y.S.2d 902, 293 N.E.2d 76, when an insured complying with its duty to use due diligence in inyestigat- ing potential claims against it would believe from the information available that its policy would be involved, the notice obligation arises. See Ogden Corp. v. Travelers Indemnity Co., 924 F.2d 39, 43 (2d Cir.1991); International Flavors, 822 F.2d at 272; Utica Mutual, 748 F.2d at 121-22. See also Trustees of Univ. of Pennsylvania v. Lexington Ins. Co., 815 F.2d 890, 896 (3d Cir.1987); Liberty Mutual Ins. Co. v. Gibbs, 773 F.2d 15, 17-18 (1st Cir.1985); Greyhound Corp. v. Excess Ins. Co. of Am., 233 F.2d 630, 635 (5th Cir.1956). A provision requiring notice when it “appears likely” that a claim will or “may” involve a policy does not require a probability — much less a certainty — that the policy at issue will be involved. See Gibbs, 773 F.2d at 17; Greyhound, 233 F.2d at 634-35. All that is required is a “reasonable possibility” of such happening, based on an objective assessment of the information available. See Ogden Corp., 924 F.2d at 43; International Flavors, 822 F.2d at 272. Such a possibility may exist even though there are some factors that tend to suggest the opposite. See Trustees, 815 F.2d at 896; Gibbs, 773 F.2d at 18; cf. Harbor Ins. Co. v. Trammell Crow Co., Inc., 854 F.2d 94, 98 (5th Cir.1988), cert. denied, 489 U.S. 1054, 109 S.Ct. 1315, 103 L.Ed.2d 584 (1989). In this connection, the district court observed that INA’s and Honda’s figures indicated a strong possibility that, should INA’s reserve figures prove to be correct, defendant’s layer of insurance would eventually be reached. Yet, it remained at least “theoretically possible that Great American’s layer would never actually be called upon to make payments.” 745" }, { "docid": "10542532", "title": "", "text": "eliminate the risk of similar occurrences in the future. Commercial Union, 822 F.2d at 271 (citations omitted); see also Utica Mutual, 748 F.2d at 121 (“Prompt notice permits the insurer to investigate the facts on which the claim is predicated and to adjust its books in order to maintain a proper reserve fund in light of the insured’s claim.”) There are two questions that courts must answer in evaluating late notice defenses. First, a court must decide when the obligation to give notice accrued. Courts have consistently held that the obligation to provide notice accrues when “the circumstances known to the insured at that time would have suggested to a reasonable person the possibility of a claim.” Commercial Ins., 822 F.2d at 272 (citations omitted). New York law applies an objective test, asking what the insured’s officers “reasonably could or should have concluded.” Utica Mutual, 748 F.2d at 122. Second, a court must then decide whether the insured did in fact provide timely notice. Whether the insurance policy provided for “immediate notice” or notice “as soon as practicable,” courts have uniformly required notice within a reasonable time under all the circumstances. See Utica Mutual, 748 F.2d at 121; New York v. Amro Realty Corp., 697 F.Supp. 99, 104 (N.D.N.Y.1988); Mighty Midgets, Inc. v. Centennial Ins. Co., 47 N.Y.2d 12, 416 N.Y.S.2d 559, 563, 389 N.E.2d 1080 (1979); Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 906, 293 N.E.2d 76, 79 (1972). While the reasonableness of delay may be an issue for trial, in the absence of an excuse or mitigating factors, courts have addressed that question as a legal matter. Amro Realty, 697 F.Supp. at 104; Jenkins v. Burgos, 99 A.D.2d 217, 472 N.Y.S.2d 373, 375-76 (N.Y.App.Div.1984); Columbus Trust Co. v. Hanover Ins. Co., 50 A.D.2d 798, 375 N.Y.S.2d 628, 629 (N.Y.App.Div.1975). Even short periods of delay have been found unreasonable as a matter of law. See Commercial Union, 822 F.2d at 272 (eighteen months); Utica Mutual, 748 F.2d at 121 (six months); Ogden, 1989 U.S. Dist LEXIS 11211 (2½ years); Howard Fuel v. Lloyd’s" }, { "docid": "10542533", "title": "", "text": "soon as practicable,” courts have uniformly required notice within a reasonable time under all the circumstances. See Utica Mutual, 748 F.2d at 121; New York v. Amro Realty Corp., 697 F.Supp. 99, 104 (N.D.N.Y.1988); Mighty Midgets, Inc. v. Centennial Ins. Co., 47 N.Y.2d 12, 416 N.Y.S.2d 559, 563, 389 N.E.2d 1080 (1979); Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 906, 293 N.E.2d 76, 79 (1972). While the reasonableness of delay may be an issue for trial, in the absence of an excuse or mitigating factors, courts have addressed that question as a legal matter. Amro Realty, 697 F.Supp. at 104; Jenkins v. Burgos, 99 A.D.2d 217, 472 N.Y.S.2d 373, 375-76 (N.Y.App.Div.1984); Columbus Trust Co. v. Hanover Ins. Co., 50 A.D.2d 798, 375 N.Y.S.2d 628, 629 (N.Y.App.Div.1975). Even short periods of delay have been found unreasonable as a matter of law. See Commercial Union, 822 F.2d at 272 (eighteen months); Utica Mutual, 748 F.2d at 121 (six months); Ogden, 1989 U.S. Dist LEXIS 11211 (2½ years); Howard Fuel v. Lloyd’s Underwriters, 588 F.Supp. 1103, 1105 (S.D.N.Y.1984) (two years); Power Authority v. Westinghouse Electric Corp., 117 A.D.2d 336, 502 N.Y.S.2d 420, 423 (N.Y.App.Div.1986) (53 days); Government Employers Ins. Co. v. Elman, 40 A.D.2d 994, 338 N.Y.S.2d 666 (N.Y.App.Div.1972) (29 days); Peerless Ins. Co. v. Nationwide Ins. Co., 12 A.D.2d 602, 208 N.Y.S.2d 469 (N.Y.App.Div.1960) (four to five months); Deso v. London & Lancashire Indemn. Co., 3 N.Y.2d 127, 164 N.Y.S.2d 689, 692, 143 N.E.2d 889, 891 (1957) (51 days). Olin argues that the explicit terms of the insurance contracts with IN A require it to provide notice “[ujpon the happening of an occurrence or accident that appears reasonably likely to involve liability on the part of [INA].” As we noted above, that language did not apply to the Saltville insurance coverage. However, even if that language did cover the Saltville mercury pollution matter, we do not believe that it imposes a materially different obligation on the insured than the Commercial Union standard quoted above. Olin’s obligation to notify its excess insurers is slightly different from its" }, { "docid": "6712691", "title": "", "text": "the day of the accident satisfied the RLI policy’s notice requirement. Second, plaintiff contends that even if notice was not given to RLI until Progressive informed RLI of the O’Neill action in June 2003, notice was still timely, because plaintiff had no reason to believe that the O’Neill action would implicate the RLI policy at that time. Under New York law, “an insured has a contractual obligation under the policy to provide timely notice of a claim....” Webster ex rel. Webster v. Mount Vernon Fire Ins. Co., 368 F.3d 209, 214 (2d Cir.2004). Consequently, “compliance with a notice-of-occurrence provision in an insurance policy is a condition precedent to an insurer’s liability under the policy.” Commercial Union Insurance Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987); see Security Mutual Insurance Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 293 N.E.2d 76 (1972). The defenses of late notice of claim or of occurrence are subject to waiver, however. In New York, an insurer seeking to “disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state” must provide the insured and the injured person or other claimant with written notice of its intent to disclaim “as soon as is reasonably possible.... ” N.Y. Ins. Law § 3420(d). “[A]n insurer cannot deny coverage if it delays unreasonably in issuing its denial, even if the insured has itself delayed unreasonably in notifying the insurer of the occurrence.” New York Univ. v. First Fin. Ins. Co., 322 F.3d 750, 753 n. 3 (2d Cir.2003). See also Arbitration Between Allcity Ins. Co. and Jimenez, 78 N.Y.2d 1054, 1056, 576 N.Y.S.2d 87, 581 N.E.2d 1342 (1991) (“an insurer who fails to timely disclaim liability or deny coverage ‘as soon as is reasonably possible,’ when required by Insurance Law § 3420(d), waives its affirmative defense of late notice”) (internal citations omitted); Schulman v. Indian Harbor Ins. Co., 40 A.D.3d 957, 958, 836 N.Y.S.2d 682, 684 (2d Dep’t 2007) (“The failure of an insured to" }, { "docid": "17597550", "title": "", "text": "that, viewing the facts in the light most favorable to plaintiff, TIG was not timely notified of the underlying accident and/or lawsuit. It is undisputed that DKM notified Aon the very day it learned plaintiff had filed a lawsuit. However, for reasons that are unclear, Aon never notified TIG, as it was required to do. Therefore, DKM is not entitled to coverage under its policy with TIG. App. 15a. A. New York Law on Late Notice Notice provisions in insurance contracts serve important policy purposes. They “enable insurers to make a timely investigation of relevant events and exercise early control over a claim,” which may assist the parties in reaching settlement before litigation. Furthermore, timely notice allows insurers “to establish more accurate renewal premiums and maintain adequate reserves.” Commercial Union Ins. v. Int’l Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987). A leading New York Court of Appeals decision addressing late notice provisions in insurance contracts holds that the failure to give timely notice alleviates an insurer of its obligation to provide coverage under an insurance policy because an insured’s compliance with the notice provision of an insurance policy operates as a condition precedent for coverage. Late notice serves as a complete defense to liability, regardless of whether the insurer was prejudiced by the delay. Security Mut. Ins. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76, 78 (1972). The principles established by Security Mutual and similar cases have been extended to claims involving excess insurance policies. The purposes of notice provisions are equally applicable to both primary and excess insurers. Prompt notice serves an “important function ... in furnishing even an excess carrier with an opportunity to participate in settlement discussions at a time when its input is most likely to be meaningful.” Am. Home Assurance Co. v. Int’l Ins. Co., 90 N.Y.2d 433, 661 N.Y.S.2d 584, 684 N.E.2d 14, 17 (1997). However, while excess insurers have most of the rights and obligations of primary insurers, there is one essential distinction between them. Unlike primary insurers, excess insurers’ “coverage does not immediately attach after" }, { "docid": "23597008", "title": "", "text": "will lie even where the insured has not complied with conditions of the policy. We have previously observed that, under New York law, an insured has an obligation to comply with the notice-of-oecurrence and notice-of-claims provisions of an insurance policy. Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987) (“Under New York law, compliance with a notiee-ofoeeurrence provision in an insurance policy is a condition precedent to an insurer’s liability under the policy”); see also Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 905, 293 N.E.2d 76, 78 (1972). Where the insured fails to comply with these conditions, the insurer is relieved of its duty not only to indemnify, but also to defend the insured. Olin Corp. v. Insurance Co. of North America, 743 F.Supp. 1044, 1055 (S.D.N.Y.1990), aff'd, 929 F.2d 62 (2d Cir.1991) (per curiam). Thus, the insured’s failure to provide notice within a reasonable time without a valid excuse for delay constitutes a complete defense to a third-party complaint by the insured to compel the insurer to bear the costs of defense in the underlying action. See Christiania Gen. Ins. Corp. v. Great American Ins. Co., 979 F.2d 268, 275 (2d Cir.1992); Utica Mut. Ins. v. Firemen’s Fund Ins. Cos., 748 F.2d 118, 121 (2d Cir.1984). Indeed, under New York law, “[a]bsent a valid excuse” the insured’s failure to provide notice “vitiates coverage.” E.g., In re Allcity Ins. Go. and Jimenez, 576 N.Y.S.2d 87, 88, 78 N.Y.2d 1054, 1055, 581 N.E.2d 1342, 1343 (1991). As this court has previously observed, notification provisions advance several important policies: They enable insurers to make a timely investigation of relevant events and exercise early control over a claim. Early control may lead to a settlement before litigation and enable insurers to take steps to eliminate the risk of similar occurrences in the future. When insurers have timely notice of relevant occurrences, they can establish more accurate renewal premiums and maintain adequate reserves. Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987). While" }, { "docid": "22989735", "title": "", "text": "involve a policy does not require a probability — much less a certainty — that the policy at issue will be involved. See Gibbs, 773 F.2d at 17; Greyhound, 233 F.2d at 634-35. All that is required is a “reasonable possibility” of such happening, based on an objective assessment of the information available. See Ogden Corp., 924 F.2d at 43; International Flavors, 822 F.2d at 272. Such a possibility may exist even though there are some factors that tend to suggest the opposite. See Trustees, 815 F.2d at 896; Gibbs, 773 F.2d at 18; cf. Harbor Ins. Co. v. Trammell Crow Co., Inc., 854 F.2d 94, 98 (5th Cir.1988), cert. denied, 489 U.S. 1054, 109 S.Ct. 1315, 103 L.Ed.2d 584 (1989). In this connection, the district court observed that INA’s and Honda’s figures indicated a strong possibility that, should INA’s reserve figures prove to be correct, defendant’s layer of insurance would eventually be reached. Yet, it remained at least “theoretically possible that Great American’s layer would never actually be called upon to make payments.” 745 F.Supp. at 155 (emphasis added). A “theoretical possibility” that a policy will not be involved is not an objectively reasonable basis upon which to conclude a claim does not “appear likely” to involve the policy. Nor may Great American be excused for a failure to provide notice because of a possibility — for example, that INA’s and Honda’s information was inaccurate — that the reinsurance would not be implicated if, despite the existence of other factors suggesting the reinsurance would be implicated, no investigation was undertaken that would negate that possibility. See Acker-Fitzsimons, 31 N.Y.2d at 442-43, 340 N.Y.S.2d 902, 293 N.E.2d 76; Utica Mutual, 748 F.2d at 122. Defendant cannot complain that it did not see something when it shut its eyes. The evidence, viewed in the light most favorable to Christiania, demonstrates a reasonable insured in defendant’s position could have believed it “appeared' likely” the claims that it was being told about would involve Christiania’s reinsurance — i.e. its obligation to give notice occurred — prior to April 1987. Defendant’s response is that" } ]

[ { "docid": "253481", "title": "", "text": "to any modification under subsection (a) of this section. (2) The plan as modified becomes the plan unless, after notice and a hearing, such modification is disapproved. Courts are split as to whether a plan can be modified to reclassify a secured creditor to unsecured status. Compare In re Dunlap, 215 B.R. 867 (Bankr.E.D.Ark.1997) (modification cannot reclassify claim from secured to unsecured); In re Banks, 161 B.R. 375 (Bankr.S.D.Miss.1993) (same); and Matter of Abercrombie, 39 B.R. 178 (Bankr.N.D.Ga.1984) (res judicata bars reclassification) with In re Rimmer, 143 B.R. 871 (Bankr.W.D.Tenn.1992) (secured claim subject to post-confirmation modification to surrender collateral); and In re Jock, 95 B.R. 75 (Bankr.M.D.Tenn.1989) (reclassification allowed). The split of authority is occasioned by the statutory language of Section 1329(a)(1) which is “certainly subject to at least two interpretations: Either that the specific periodic payments may be increased or decreased or that the total amount of the payments on a claim may be increased or decreased.” Rimmer, 143 B.R. at 875. The court in Rimmer, relying on the Jock opinion, held that the latter interpretation is correct. I disagree and follow the other line of cases which adhere to the former alternative: that Section 1329(a)(1) permits a post-confirmation modification only to alter the amount of specific periodic payments. Section 1329(a)(1) provides that the plan may be modified to “increase or reduce the amount of payments on claims of a particular class provided for by the plan.” This section does not state that the plan may be modified to increase or reduce the amount of claims. This is of significance in relation to secured claims. Such claims are secured claims to the extent of the value of the collateral in accordance with Section 506(a) of the Code. Valuation of secured claims is adjudicated by the order of confirmation. A debtor’s confirmed plan is res judicata as to claims determinations. Banks, 161 B.R. at 378. Certainly, Section 1329(a)(1) could be clearer; however, it does not expressly permit a debtor to alter, reduce or reclassify a previously allowed secured claim. See Dunlap, 215 B.R. at 870; Banks, 161 B.R. at 378;" } ]

[ { "docid": "18370176", "title": "", "text": "as noted by the court in In re Knappen, interpreting § 1327 to mean that the plan cannot be amended ignores § 1329. The Court therefore holds that modification of a confirmed Chapter 13 plan under the authority of § 1329(a)(1) and (3) is permitted under the circumstances presented, and Creditor’s allowed 910-claim will be reconsidered for cause. Debtors elected in their Chapter 13 plan to pay the full contract price for the vehicle as a condition to their keeping the collateral. Since the collateral has been destroyed, the reason for their election no longer exists and amendment of the plan’s treatment of Creditor’s claim is warranted. D. The plan may be amended to terminate payments on the 910-claim as of the date of destruction of the collateral and to pay the remaining portion of Creditor’s claim as an unsecured claim. The Court must next determine the appropriate modification of the plan. Pre- BAPCPA, when amendment of Chapter 13 plans have been allowed to reflect post-confirmation surrender or destruction of collateral securing an allowed claim and the liquidation value of the collateral was insufficient to satisfy the allowed secured claim in full, many courts have allowed the deficiency as an unsecured claim. This approach is illustrated by Zieder. After holding that creditor’s liquidation of a motor vehicle securing its claim after post-confirmation surrender by the debtors constituted cause for reconsideration of the creditor’s allowed claim, the court found that the application of § 1329(a) and § 506(j) compelled the conclusion that the secured creditor’s remaining claim “must be reconsidered for cause and, when reconsidered, it becomes an unsecured claim by operation of law. There is no longer collateral securing [the creditor’s] claim.” As a leading treatise on Chapter 13 states, “Once a lienholder has received all of its collateral by surrender or by repossession, it cannot be the holder of an allowable secured claim under § 506(a).” The deficiency is added to the amount of the unsecured claim, which at confirmation was determined under § 506(a). Neither the Court’s research nor the briefs of the parties have identified any cases" }, { "docid": "18370164", "title": "", "text": "also found to contravene § 1327(a), effect of confirmation, “because a contrary interpretation postulates an unlikely congressional intent to give debtors the option to shift the burden of depreciation to a secured creditor by reclassifying the claim and surrendering the collateral when the debtor no longer has any use for the devalued asset.” In the Sixth Circuit, Nolan is not limited to plan modifications proposed by the debtor. Rather, in In re Adkins, Nolan was held to foreclose reclassification of the debt remaining after creditor relief from stay and repossession and sale of collateral. After debtor’s default in Chapter- 13 plan payments, creditor moved for relief from stay to repossess and sell the vehicle securing its claim and requested that any deficiency balance be paid as a secured claim, after the creditor filed an amended proof of claim reflecting credit of the proceeds of sale. The Chapter 13 Trustee objected, contending that the any deficiency should be reclassified as a unsecured claim. The court held that a motion under § 1329 to modify a plan, as had been made in Nolan, is not the “key to whether reclassification of secured claims post-confirmation is allowed in Chapter 13 bankruptcies.” Because of its reliance on §§ 1325 and 1327, Nolan’s ban on reclassification was found equally applicable to cases where the debtor’s actions, such as default, have provided the cause for the secured creditor to have the automatic stay lifted. Section 502(j), which allows for the reconsideration of claims that have been allowed or disallowed for cause, was construed as not allowing “reclassification of an already-allowed claim.” The rule prohibiting reclassification of a deficiency in a secured claim after sale of collateral is followed by numerous courts. “Perhaps a majority of the reported decisions interpret § 1329 to prohibit modification to surrender collateral or to account for repossession when the modified plan treats the deficiency as an unsecured claim.” Norton’s treatise finds the Nolan view consistent with the Code and the Fifth Amendment of the Constitution of the United States. However, both Collier on Bankruptcy and Lundin’s treatise on Chapter 13 find" }, { "docid": "17384119", "title": "", "text": "prompt redemption at the liquidation value: A debtor may redeem under Section 722, freeing up tangible personal property purchased for household use. Redemption currently requires a lump-sum payment of the value of the collateral or unpaid balance of the debt; whichever is less, within forty-five days after the first meeting of creditors. The creditor has no veto power here; it may only challenge the valuation. On the other hand, since payment is certain, quick, and equal to expected liquidation value, the creditor should be indifferent. Marianne B. Culhane and Michaela M. White, But Can She Keep the Car? Some Thoughts on Collateral Retention in Con sumer Chapter 7 Cases, 7 Fordham J. Corp. & Fin. L. 471, 476 (2002). Recently, the Supreme Court issued another chapter 13 cramdown decision, this one regarding interest rates. In Till v. SCS Credit Corp., the Court held that the proper interest rate to be applied to secured claims in a Chapter 13 plan was the national prime rate as adjusted for the specific risks of the debtors, without regard to the rate set out in the parties’ security agreement. - U.S. -, 124 S.Ct. 1951, 158 L.Ed.2d 787 (2004). Justice Thomas, in his concurring opinion stated: In Associates Commercial Corp. v. Rash, we utilized a secured-creditor-friendly replacement-value standard rather than the lower foreclosure-value standard for valuing secured claims when a debtor has exercised Chapter 13’s cram down option. We did so because the statute at issue in that ease reflected Congress’ recognition that ‘if a debtor keeps the property and continues to use it, the creditor obtains at once neither the property nor its value and is exposed to double risks: The debtor may again default and the property may deteriorate from extended use.’ Id. at 1967 (citations omitted). By contrast, the creditor here is receiving the value of the collateral, in a lump sum, without risk of the Debtor’s default. Accordingly, redemption is more akin to surrender of collateral than cramdown, as the Debtor is surrendering the value of the collateral to the creditor in a lump sum, in a reasonably prompt period" }, { "docid": "7664300", "title": "", "text": "B. In re Nolan The sole legal issue in this case is whether the bankruptcy court and district court correctly extended the principles this Court espoused in the case Chrysler Financial Corp. v. Nolan (In re Nolan), 232 F.3d 528 (6th Cir.2000), to the present situation in which a secured creditor repossesses a debtor’s vehicle post-confirmation under court-ordered relief from the automatic stay. In the Nolan decision, a Chapter 13 debtor moved under 11 U.S.C. § 1329 to surrender her car post-confirmation and reclassify any deficiency resulting from the sale of the surrendered car as an unsecured claim. 232 F.3d at 529-30. Section 1329 allows modification of a Chapter 13 bankruptcy plan after confirmation of the plan but before completion of payments, on the motion of the debtor, the trustee, or the holder of an unsecured claim, to “increase or reduce the amount of payments on claims of a particular class provided for by the plan,” to “extend or reduce the time for such payments,” or to “alter the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim other than under the plan.” 11 U.S.C. § 1329(a). Pri- or to Nolan, lower federal courts were split on whether section 1329 allowed a debtor to modify a confirmed plan by surrendering collateral to a secured creditor (the value of which typically would have already been subjected to “cram down”), and then reclassifying any deficiency resulting from the sale of the collateral as an allowed unsecured claim to be paid back at the generally reduced rate for unsecured creditors set forth in the plan. See 232 F.3d at 531-32 (noting split). What the Nolan court termed “a sizable minority” of lower courts followed a rationale set forth in In re Jock, 95 B.R. 75 (Bankr.M.D.Tenn.1989), that allowed such a surrender and reclassification under section 1329. In Nolan, however, this Court held that section 1329 did not allow reclassification as an unsecured claim of a deficiency resulting from the sale of a vehicle surrendered" }, { "docid": "4187999", "title": "", "text": "the status of the secured claim. The secured claim remains unchanged, “albeit ... reduced by whatever amount [the creditor] might receive from liquidation of its collateral.” Matter of Abercrombie, 39 B.R. 178, 180 (Bankr.N.D.Ga.1984). The only thing “changed” is the application of the value of the collateral to the secured debt. Id. See also In re Smith, 259 B.R. 323, 327 (Bankr.S.D.Ill.2001) (Debtor may surrender collateral and receive credit against future plan payments but cannot reclassify the remaining amount as an unsecured claim.). The result is that even though the debtors may surrender collateral securing a creditor’s claim and receive a credit to be applied against the secured claim, the debtors must still pay the full amount of Riteway’s secured claim in order to complete their plan as confirmed. The Court is cognizant of the strange result that the debtors will be paying a secured claim secured by nothing. “Nonetheless, the mere fact alone that collateral ceases to be property of the estate after confirmation of a Chapter 13 plan does not retroactively convert an allowed secured claim into an unsecured claim, like a coach into a pumpkin on the midnight stroke of the debtor’s decision to abandon or turn over collateral.” In re Smith, 207 B.R. 26, 31 (Bankr.N.D.Ga.1997). The secured status of Riteway’s claim was fixed at confirmation. The claim was allowed as “secured” pursuant to the operation of § 502(a), and its status is not altered by the fact that the debtors propose to surrender the collateral. Riteway, as an allowed secured claimholder, is entitled to be paid the full amount of its claim under the debtors’ confirmed plan. An additional argument on policy grounds should also be considered. There is a certain amount of risk involved in the Chapter 13 confirmation process. The risk is present on both sides of the coin— debtors and creditors. Debtors bear the risk the collateral will reduce in value after confirmation at a rate much faster than anticipated. Creditors bear the risk the debtor will not be able to make plan payments as proposed and confirmed. The current confirmation system" }, { "docid": "3108157", "title": "", "text": "the definition of \"inherently de-preciable” collateral, absent evidence to the contrary. . Fixing secured status based on replacement value at the petition date would not entirely negate the Code's adequate protection provisions. For example, Creditor's interest in the pickup might be inadequately protected from catastrophic damage if Debtor failed to maintain proper insurance. . Section 507(b) gives a creditor a ''superpri-ority” claim that takes precedence over all other priority claims provided for under Section 507 if adequate protection provided under Sections 362, 363, or 364 fails to actually protect the creditor's interest. . The Bankruptcy Court for the Southern District of Georgia recently announced a decision that rests upon the same basic proposition as the formula articulated here. See Davis-McGraw, Inc. v. Johnson (In re Johnson), 247 B.R. 904 Chapter 13 Case Number 97-13584, (Bankr.S.D.Ga., Augusta Division, December 23, 1999) (unpublished) (Dalis, J.). The proposition is that while a creditor's secured status for the purpose of Section 1325(a)(5)(B) should be determined based on collateral's confirmation daté replacement value, the creditor should also be treated as adequately protected for at least, but for no more than, the collateral's petition date liquidation value. In Davis-McGraw, the court addressed issues that arose when the debtors surrendered collateral post-petition, liquidation of the collateral did not satisfy the creditor’s secured claim, and the debtors sought to modify their plan to classify the remaining balance as an unsecured claim. Courts are divided on this issue. Some treat such deficiencies as unsecured, see In re Rimmer, 143 B.R. 871, 875 (Bankr.W.D.Tenn.1992), and others require debtors to continue to treat them as secured claims, see Matter of Coleman, 231 B.R. 397, 400 (Bankr.S.D.Ga.1999). In Davis-McGraw, the court reached a conclusion that treated the creditor as having moved the court for adequate protection of its interest in collateral's petition date liquidation value as of the petition date. The court required the debtors' modified plan to afford the creditor a Section 507(b) superpri-ority claim to the extent that the surrendered collateral's petition date liquidation value exceeded the amount the creditor received from debtor on the claim under the plan plus" }, { "docid": "18370175", "title": "", "text": "be determined by replacement cost, which is higher than liquidation value, the Code usually produces an artificially high value that is not caused by either the debtor or the creditor, resulting in a deficiency following liquidation not provided for by the plan. Therefore to allow plan amendment following liquidation is viewed by those courts not permitting plan amendment as a double cram down. These concerns are not present as to 910-claims. The Court also rejects the notion that § 1327 bars amendment. Section 1327(a) provides that a confirmed plan is binding on the debtor and each creditor, thereby imposing a res judicata effect. Nolan’s reliance on the argument that to allow amendment would contravene § 1327(a) was grounded in concerns over giving the debtor “the option to shift the burden of depreciation to a secured creditor by reclassifying the claim and surrendering the collateral when the debtor no longer has any use for the devalued asset.” As discussed above, this concern is not relevant to a 910-claim when the collateral is accidently destroyed. In addition, as noted by the court in In re Knappen, interpreting § 1327 to mean that the plan cannot be amended ignores § 1329. The Court therefore holds that modification of a confirmed Chapter 13 plan under the authority of § 1329(a)(1) and (3) is permitted under the circumstances presented, and Creditor’s allowed 910-claim will be reconsidered for cause. Debtors elected in their Chapter 13 plan to pay the full contract price for the vehicle as a condition to their keeping the collateral. Since the collateral has been destroyed, the reason for their election no longer exists and amendment of the plan’s treatment of Creditor’s claim is warranted. D. The plan may be amended to terminate payments on the 910-claim as of the date of destruction of the collateral and to pay the remaining portion of Creditor’s claim as an unsecured claim. The Court must next determine the appropriate modification of the plan. Pre- BAPCPA, when amendment of Chapter 13 plans have been allowed to reflect post-confirmation surrender or destruction of collateral securing an allowed claim" }, { "docid": "18370163", "title": "", "text": "in In re Nolan. Debtor moved to modify her plan post-confirmation in order to surrender the vehicle securing creditor’s claim and to reclassify the deficiency that she owed following application of the value of the collateral as an unsecured claim. The court concluded that a debtor cannot modify a confirmed plan under § 1329(a) by surrendering collateral to the creditor, having the creditor sell the collateral, applying the proceeds to the claim, and then treating any deficiency as an unsecured claim. Section 1329(a)(1) was construed to permit only “modification of the amount and timing of payments, not the total amount of the claim.” It does not expressly allow a debtor to alter, reduce, or reclassify an allowed secured claim. The court held that allowing modification of a plan to pay the deficiency as proposed would contravene the statute. The preBAPCPA version of § 1325(a)(5)(B)(ii) was construed to mandate that a secured claim is fixed in amount and status at confirmation and must be paid in full once it has been allowed. The proposed modification was also found to contravene § 1327(a), effect of confirmation, “because a contrary interpretation postulates an unlikely congressional intent to give debtors the option to shift the burden of depreciation to a secured creditor by reclassifying the claim and surrendering the collateral when the debtor no longer has any use for the devalued asset.” In the Sixth Circuit, Nolan is not limited to plan modifications proposed by the debtor. Rather, in In re Adkins, Nolan was held to foreclose reclassification of the debt remaining after creditor relief from stay and repossession and sale of collateral. After debtor’s default in Chapter- 13 plan payments, creditor moved for relief from stay to repossess and sell the vehicle securing its claim and requested that any deficiency balance be paid as a secured claim, after the creditor filed an amended proof of claim reflecting credit of the proceeds of sale. The Chapter 13 Trustee objected, contending that the any deficiency should be reclassified as a unsecured claim. The court held that a motion under § 1329 to modify a plan," }, { "docid": "4187998", "title": "", "text": "the claim be paid in full. Reclassification of any remaining amount due as an unsecured claim would change the allowed amount of the secured claim. Therefore, the deficiency between the amount of the secured claim and the amount realized by sale of the collateral must continue to be classified as and treated as a secured claim. A similar result was reached in the case of Matter of Coleman, 231 B.R. 397 (Bankr.S.D.Ga.1999). Acknowledging that § 1329(a)(1) permits post confirmation modification to alter the amount of specific periodic payments, the court held that a confirmed plan binds both the debtor and the creditors. Therefore, neither a secured claim nor any portion of it can be reclassified as anything else. “In other words, altering the amount or timing of payments on a secured claim cannot change the fact that, in the end, the full amount of the secured claim established, as of the effective date of the plan, must be paid.” Id. at 399-400. A modification under either §§ 1329(a)(1) or (a)(3) would not and cannot change the status of the secured claim. The secured claim remains unchanged, “albeit ... reduced by whatever amount [the creditor] might receive from liquidation of its collateral.” Matter of Abercrombie, 39 B.R. 178, 180 (Bankr.N.D.Ga.1984). The only thing “changed” is the application of the value of the collateral to the secured debt. Id. See also In re Smith, 259 B.R. 323, 327 (Bankr.S.D.Ill.2001) (Debtor may surrender collateral and receive credit against future plan payments but cannot reclassify the remaining amount as an unsecured claim.). The result is that even though the debtors may surrender collateral securing a creditor’s claim and receive a credit to be applied against the secured claim, the debtors must still pay the full amount of Riteway’s secured claim in order to complete their plan as confirmed. The Court is cognizant of the strange result that the debtors will be paying a secured claim secured by nothing. “Nonetheless, the mere fact alone that collateral ceases to be property of the estate after confirmation of a Chapter 13 plan does not retroactively convert an" }, { "docid": "9579891", "title": "", "text": "a secured claim is fixed in amount and status and must be paid in full once it has been allowed. See 11 U.S.C. § 1325(a)(5)(B)(ii) (1993). Debtors seeking modification are attempting to bifurcate a claim that has already been classified as fully secured into a secured claim as measured by the collateral’s depreciated value and an unsecured claim as measured by any unpaid deficiency. This would negate the requirement of section 1325(a)(5)(B)(ii) that a plan is not to be confirmed unless the property to be distributed on account of a claim is not less than the allowed amount of the claim. See Chrysler Fin. Corp., 234 B.R. at 395 (quoting Dunlap, 215 B.R. at 870). Third, proposed modification would contravene section 1327(a), because a contrary interpretation postulates an unlikely congressional intent to give debtors the option to shift the burden of depreciation to a secured creditor by reclassifying the claim and surrendering the collateral when the debtor no longer has any use for the devalued asset. See Coleman, 231 B.R. at 400. The court in Banks saliently articulated the injustice of such a maneuver: Code § 1329(a) basically authorizes the amendment of a confirmed plan so as to change (1) the amount; or (2) the time for payments “on claims of a particular class provided for by the plan.” The boldest and most frequent attempt by debtors to use the postconfirmation modification to alter the treatment of secured claims occurs when the collateral no longer appears to have a value which justifies full payment of the balance of the secured claim — in contrast with the composition percent being paid on unsecured claims. The collateral having lost its attractiveness, the debtor proposes an amendment to the plan so as (1) to surrender the now-unattractive collateral to the creditor; (2) to reduce the unpaid balance of the secured claim to reflect the now-diminished value of the collateral; (3) to have that reduced secured balance satisfied by the surrender of the collateral; (4) to have the remaining balance of the secured claim converted to an unsecured claim; and (5) to have this" }, { "docid": "18370159", "title": "", "text": "section 30102 of title 49) acquired for the personal use of the debt- or, or if collateral for that debt consists of any other thing of value, if the debt was incurred during the 1-year period preceding that filing; Creditor argues that the Code prior to the BAPCPA did not allow modification of a Chapter 13 plan to provide for the payment of a secured creditor’s deficiency claim remaining following post-confirmation surrender of a vehicle to a secured creditor as an unsecured claim. After the BAPCPA, with respect to 910-vehicle loans, Creditor argues that this protection was enhanced, so Debtors must pay the deficiency as a secured claim. Debtors disagree. They assert that prior to the BAPCPA the Code permitted the amendment of a Chapter 13 plan, following surrender of a vehicle securing a claim, to pay the deficiency in the previously secured claim as an unsecured claim. As to 910-vehicle claims, Debtors submit that the BAPCPA’s hanging paragraph should be construed to either treat the claim as paid in full by the surrender of the collateral or not to have changed the law which pre-BAPCPA allowed payment of the deficiency as an unsecured claim. ANALYSIS AND CONCLUSIONS OF LAW. Pre-BAPCPA, commentators and courts were divided on whether in a Chapter 13 case a deficiency in a secured claim following post-confirmation repossession or surrender of collateral could be reclassified as an unsecured claim. No post-BAPCPA cases addressing this issue with respect to 910-vehicle loans, have been cited by the parties or located by the Court’s own research. To resolve the matter, the Court first examines the effect of the hanging paragraph and then considers the preBAPCPA cases addressing plan amendment following liquidation of collateral. In light of this background, the Court considers the relationship between plan amendment and 910-claims. For the reasons stated below, the Court concludes that the Debtor’s Chapter 13 plan may be amended to provide for termination of payments on the 910-claim and for the payment of Ford Credit’s deficiency as an unsecured claim. A. The Code provides unique treatment for purchase money secured claims arising from" }, { "docid": "4188000", "title": "", "text": "allowed secured claim into an unsecured claim, like a coach into a pumpkin on the midnight stroke of the debtor’s decision to abandon or turn over collateral.” In re Smith, 207 B.R. 26, 31 (Bankr.N.D.Ga.1997). The secured status of Riteway’s claim was fixed at confirmation. The claim was allowed as “secured” pursuant to the operation of § 502(a), and its status is not altered by the fact that the debtors propose to surrender the collateral. Riteway, as an allowed secured claimholder, is entitled to be paid the full amount of its claim under the debtors’ confirmed plan. An additional argument on policy grounds should also be considered. There is a certain amount of risk involved in the Chapter 13 confirmation process. The risk is present on both sides of the coin— debtors and creditors. Debtors bear the risk the collateral will reduce in value after confirmation at a rate much faster than anticipated. Creditors bear the risk the debtor will not be able to make plan payments as proposed and confirmed. The current confirmation system attempts to balance these risks between the parties. Debtors are allowed, pursuant to § 506, to pay claims as secured claims only to the extent of the value of the collateral as determined at confirmation. Creditors are allowed to rely upon the classification and claim determination at confirmation and that the amount determined to be secured will actually be paid by the debtor (as long as the case continues). Kaaran E. Thomas, Valuation of Assets in Bankruptcy Proceedings: Emerging Issues, 51 Mont. L.Rev. 126 (1990). Allowing the debtor to surrender the collateral and either not pay a deficiency claim or to pay the deficiency as an unsecured claim upsets this delicate balance between the parties. The risk of extreme depreciation post confirmation would shift to the creditor without a corresponding benefit. Nolan at 534. A creditor would generally have no confidence that the amount allowed as secured at confirmation would be paid by the debtors. Such an imbalance of equities and shifting of risks is unacceptable to this Court. This Court is also aware that" }, { "docid": "7688097", "title": "", "text": "1325(a)(5)(C)). Under Pre-BAPCPA § 1325(a)(5), [a] debtor has three options regarding secured debt. 11 U.S.C. § 1325(a)(5). First, the debtor and creditor may agree on terms. 11 U.S.C. § 1325(a)(5)(A). Second, the debtor may surrender the collateral to the creditor. 11 U.S.C. § 1325(a)(5)(C). The creditor will then sell the collateral, by definition receiving the foreclosure value. The cash realized will be subtracted from the debt and the difference allowed as an unsecured claim in the debtor’s chapter 13 plan. Third, ... the debtor may retain the collateral. His chapter 13 plan will include a secured claim for the value of the collateral as of the date of filing and an unsecured claim for any difference between the amount owed the creditor and the allowed secured claim. 11 U.S.C. § 506(a), § 1325(a)(5)(B). The secured claim is for the replacement value of the collateral. Rash, 117 S.Ct. at 1886. Replacement value, not foreclosure value, is used because, “if a debtor keeps the property and continues to use it, the creditor obtains at once neither the property nor its value and is exposed to double risks: The debtor may again default and the property may deteriorate from extended use.” Id. at 1885. Davis-McGraw, Inc. v. Johnson (In re Johnson), 247 B.R. 904, 906 (Bankr.pS.D.Ga.1999) (footnotes omitted). In order to proceed to the issue before the court, it is first necessary to determine whether Pre-BAPCPA § 506(a) was called into play in scenarios where a debtor surrendered collateral pursuant to Pre-BAPCPA § 1325(a)(5)(C), or was applicable only in situations involving cramdown under Pre-BAPCPA § 1325(a)(5)(B). See Gen. Motors Acceptance Corp. v. Valenti (In re Valenti), 105 F.3d 55, 59 (2d Cir.1997) (“To determine the value of the creditor’s allowed secured claim [under Pre-BAPCPA § 1325(a)(5)], we turn to 11 U.S.C. § 506(a) [(2004)].”). B Revised § 1325(a)’s Anti-Cramdown Paragraph provides that Revised § 506 “shall not apply to a claim described in [Revised § 1325(a)(5) ]” if the creditor has a purchase money security interest in a “motor vehicle” purchased for the debtor’s use within 910 days preceding the bankruptcy or in" }, { "docid": "8209230", "title": "", "text": "the Debtor. On February 23, 2007, the Court denied confirmation of the Debtor’s modified plan for other reasons, including material default in plan payments. The Court reserved ruling on the issue at bar and took the Creditor’s objection to confirmation of the plan under advisement. This issue has arisen repeatedly post-BAPCPA, and it has been resolved with differing results by many courts attempting to construe and apply the statutory language. III. DISCUSSION The issue before the Court is one of first impression for this judge and involves the “hanging paragraph” found at the end of § 1325(a)(9). In particular, the Court must determine whether a debtor may surrender a vehicle to a secured creditor, as part of a Chapter 13 plan, in full satisfaction of the creditor’s claim, even though the liquidation proceeds of the vehicle are less than the total claim, thereby precluding that creditor from asserting a deficiency claim. The Court concludes that the Debtor is not entitled to surrender the Vehicle to the Creditor in full satisfaction of its claim. The Creditor is entitled to assert the unsecured portion of its claim for the deficiency balance owed by the Debtor after liquidation of the collateral in accordance with relevant state law. The Court will discuss the reasons for this decision. In the context of a Chapter 13 case, § 1325(a)(5) of the Bankruptcy Code, as amended by BAPCPA, sets forth three options for a Chapter 13 plan’s treatment of allowed secured claims: (1) the secured claim may be treated in a manner accepted by the secured creditor (11 U.S.C. § 1325(a)(5)(A)); (2) the debtor may retain the property as long as the value of the property to be distributed under the plan on account of the secured claim is not less than the allowed amount of such claim (11 U.S.C. § 1325(a)(5)(B)); or (3) the debtor may surrender the collateral securing the claim to such holder (11 U.S.C. § 1325(a)(5)(C)). Only the third option is at issue here. Section 506(a)(1) of the Bankruptcy Code provides that an allowed claim is bifurcated into components; one secured to the" }, { "docid": "7688096", "title": "", "text": "secured under Revised § 1325(a)(5), then surrender under Revised § 1325(a)(5)(C) fully satisfies the claim. Alternatively, the NACBA Interve-nors argue that the Anti-Cramdown Paragraph effectively eliminates the application of Revised § 1325(a)(5) from any secured claim satisfying the Anti-Cramdown Paragraph’s criteria since those creditors no longer possess allowed secured claims under Revised § 506. According to this argument, a secured creditor’s claim may, however, still be modified pursuant to Re vised § 1322(b)(2). A Revised § 1325, entitled “Confirmation of plan,” provides that if certain requirements are met, the court “shall” confirm a Chapter 13 plan. See 11 U.S.C. § 1325(a) (2005). The confirmation requirements of Revised § 1325(a)(5) offer debtors three options for dealing with allowed secured claims if the plan is to be confirmed: (1) obtain the creditor’s acceptance of the plan (Revised § 1325(a)(5)(A)); (2) provide for the cramdown of the creditor’s allowed secured claim (Revised § 1325(a)(5)(B)), subject to the class of secured creditors depicted in the Anti-Cramdown Paragraph; or (3) surrender of the collateral to the secured creditor (Revised § 1325(a)(5)(C)). Under Pre-BAPCPA § 1325(a)(5), [a] debtor has three options regarding secured debt. 11 U.S.C. § 1325(a)(5). First, the debtor and creditor may agree on terms. 11 U.S.C. § 1325(a)(5)(A). Second, the debtor may surrender the collateral to the creditor. 11 U.S.C. § 1325(a)(5)(C). The creditor will then sell the collateral, by definition receiving the foreclosure value. The cash realized will be subtracted from the debt and the difference allowed as an unsecured claim in the debtor’s chapter 13 plan. Third, ... the debtor may retain the collateral. His chapter 13 plan will include a secured claim for the value of the collateral as of the date of filing and an unsecured claim for any difference between the amount owed the creditor and the allowed secured claim. 11 U.S.C. § 506(a), § 1325(a)(5)(B). The secured claim is for the replacement value of the collateral. Rash, 117 S.Ct. at 1886. Replacement value, not foreclosure value, is used because, “if a debtor keeps the property and continues to use it, the creditor obtains at once neither the" }, { "docid": "8209231", "title": "", "text": "is entitled to assert the unsecured portion of its claim for the deficiency balance owed by the Debtor after liquidation of the collateral in accordance with relevant state law. The Court will discuss the reasons for this decision. In the context of a Chapter 13 case, § 1325(a)(5) of the Bankruptcy Code, as amended by BAPCPA, sets forth three options for a Chapter 13 plan’s treatment of allowed secured claims: (1) the secured claim may be treated in a manner accepted by the secured creditor (11 U.S.C. § 1325(a)(5)(A)); (2) the debtor may retain the property as long as the value of the property to be distributed under the plan on account of the secured claim is not less than the allowed amount of such claim (11 U.S.C. § 1325(a)(5)(B)); or (3) the debtor may surrender the collateral securing the claim to such holder (11 U.S.C. § 1325(a)(5)(C)). Only the third option is at issue here. Section 506(a)(1) of the Bankruptcy Code provides that an allowed claim is bifurcated into components; one secured to the extent of the value of the creditor’s interest in the collateral, and the remainder of the claim is unsecured to the extent that the value of the collateral is less than the amount of such allowed claim. Prior to the enactment of BAPCPA, a Chapter 13 debtor could bifurcate a secured creditor’s claim into secured and unsecured portions, thereby allowing the debtor to retain the property by paying the secured creditor only the value of its collateral, plus interest, and treating any remaining balance the debtor owed as a general unsecured claim. See 11 U.S.C. §§ 506(a), 1322(b), & 1325(a)(5)(B). A debtor who wanted to retain the collateral securing a claim could “cram down” such claim under § 506(a) by paying the value of the secured portion of the claim, plus interest, with the unsecured portion to be paid with the other general unsecured claims. See 11 U.S.C. § 1325(a)(5)(B). This was commonly done, and § 506(a) was used to bifurcate the claim when a debtor proposed to keep the collateral and pay the secured" }, { "docid": "9579892", "title": "", "text": "Banks saliently articulated the injustice of such a maneuver: Code § 1329(a) basically authorizes the amendment of a confirmed plan so as to change (1) the amount; or (2) the time for payments “on claims of a particular class provided for by the plan.” The boldest and most frequent attempt by debtors to use the postconfirmation modification to alter the treatment of secured claims occurs when the collateral no longer appears to have a value which justifies full payment of the balance of the secured claim — in contrast with the composition percent being paid on unsecured claims. The collateral having lost its attractiveness, the debtor proposes an amendment to the plan so as (1) to surrender the now-unattractive collateral to the creditor; (2) to reduce the unpaid balance of the secured claim to reflect the now-diminished value of the collateral; (3) to have that reduced secured balance satisfied by the surrender of the collateral; (4) to have the remaining balance of the secured claim converted to an unsecured claim; and (5) to have this balance of the claim satisfied by the 5%, 17%, or whatever percent payment provided for unsecured claims — all over the objection of the holder of the secured claim. Banks, 161 B.R. at 377 (citation omitted). We join the Banks court in rejecting the notion that debtors have such wide latitude to subject the creditor to their whims throughout the life of the plan. We further note that under the Jock approach, debtors would obtain a double reduction in debt in many cases, because the creditor already experiences a cram down in valuation at the time of confirmation. See Chrysler Fin. Corp., 234 B.R. at 396 (quoting Banks, 161 B.R. at 379). There is no indication that Congress intended to allow debtors to reap a windfall by employing a subterfuge that unfairly shifts away depreciation, deficiency, and risk voluntarily assumed by the debtor through her confirmation of the Chapter 13 plan. Fourth, only the debtor, the trustee, and holders of unsecured claims are permitted to bring a motion to modify a plan pursuant to section" }, { "docid": "7200934", "title": "", "text": "is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan. 11 U.S.C. § 1327(a). The issue presented to the Court is whether the chapter 13 debtor may modify her confirmed plan to surrender collateral that has diminished in value to the secured creditor and to treat any deficiency after liquidation as an unsecured claim. Courts that have dealt with similar issues have reached differing conclusions in their analyses of allowable modifications under § 1329(a). In In re Jock, 95 B.R. 75 (Bankr.M.D.Tenn.1989), the Court held that the debtor could modify a confirmed plan to surrender a car to a secured claim holder and pay any deficiency as an unsecured claim. That Court stated the following: This Chapter 13 debtor could have satisfied the secured claim of Boatmen’s by surrendering the car to the bank at confirmation of the original plan ... The incorporation of §§ 1322(b)(8) and 1325(a)(5)(C) into the standards for post-confirmation modification in § 1329 empower this Chapter 13 debtor to modify the confirmed plan to surrender the car in satisfaction of Boatmen’s secured claim. Boatmen’s argues that 11 U.S.C.S. § 1327 (1987) prohibits the debtor to modify its treatment after the original confirmation order became final. There is some ease support for this view. See In re Abercrombie, 39 B.R. 178 (Bankr.N.D.Ga.1984); Kitchen v. Malmstrom Federal Credit Union (In re Kitchen), 64 B.R. 452 (Bankr.D.Mont.1986). See also In re Johnson, 25 B.R. 178 (Bankr.N.D.Ga.1982). The cases cited by the bank prohibit post-confirmation modifications based on the “res judicata” or binding effect of a confirmed Chapter 13 plan under § 1327(a). Section 1327(a) is not a limit on permitted modification of a confirmed Chapter 13 plan; rather, it is a statutory description of the effect of a confirmed plan or of a confirmed modified plan. 95 B.R. at 77. See also, In re Anderson, 153 B.R. 527 (Bankr.M.D.Tenn.1993) (noting that Jock has been criticized but stating that it remains the law in that district); In re Rimmer, 143 B.R. 871 (Bankr.W.D.Tenn.1992); In re Williams, 108 B.R." }, { "docid": "18370162", "title": "", "text": "1325(a)(5)(C) satisfies the 910-claim in full. They reason that pre-BAPCPA, the unsecured claim arising upon a plan election to surrender collateral under § 1325(a)(5)(C) was based upon § 506(a), that the hanging paragraph precludes the application of § 506(a) for 910-vehicle loans, and therefore surrender pursuant to a Chapter 13 plan satisfies the 910-claim in full. The Tenth Circuit BAP states, “The hanging paragraph of § 1325 is unambiguous and eliminates § 506 bifurcation in all 910 cases. Therefore debtors’ proposed surrender of vehicles in full satisfaction of their indebtedness ... is authorized.” B. Pre-BAPCPA treatment of secured claim deficiency following post-confirmation repossession or surrender of collateral. Neither the Tenth Circuit Court of Appeals nor the Tenth Circuit Bankruptcy Appellate Panel has published an opinion addressing the issue of treatment of a secured claim deficiency following post-confirmation repossession or surrender of collateral. The bankruptcy courts in the Tenth Circuit are divided. The leading case holding that following post-confirmation surrender of collateral the deficiency must be paid as a secured claim is the Sixth Circuit’s decision in In re Nolan. Debtor moved to modify her plan post-confirmation in order to surrender the vehicle securing creditor’s claim and to reclassify the deficiency that she owed following application of the value of the collateral as an unsecured claim. The court concluded that a debtor cannot modify a confirmed plan under § 1329(a) by surrendering collateral to the creditor, having the creditor sell the collateral, applying the proceeds to the claim, and then treating any deficiency as an unsecured claim. Section 1329(a)(1) was construed to permit only “modification of the amount and timing of payments, not the total amount of the claim.” It does not expressly allow a debtor to alter, reduce, or reclassify an allowed secured claim. The court held that allowing modification of a plan to pay the deficiency as proposed would contravene the statute. The preBAPCPA version of § 1325(a)(5)(B)(ii) was construed to mandate that a secured claim is fixed in amount and status at confirmation and must be paid in full once it has been allowed. The proposed modification was" }, { "docid": "16969161", "title": "", "text": "that modification is appropriate here given the equities of her case. Section 1329(a) of the Bankruptcy Code provides for modification of a confirmed Chapter 13 plan upon request of the debtor, the trustee, or an unsecured creditor in order to: (1) increase or reduce the amount of payments on claims of a particular class provided for by the plan; (2) extend or reduce the time for such payments; or (3) alter the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim other than under the plan. 11 U.S.C. § 1329(a). In addition to qualifying under § 1329(a), a proposed modifi cation must also satisfy the confirmation requirements of the initial plan, including the requirement of good faith. See 11 U.S.C. § 1329(b)(1). The issue in this case — whether, under § 1329(a), a debtor may modify a confirmed Chapter 13 plan to surrender collateral to a secured creditor and reclassify the remainder of the creditor’s claim as unsecured — has been the subject of much debate in the courts. See, e.g., In re Nolan, 232 F.3d 528, 531-32 (6th Cir.2000); David S. Cartee, Comment, Surrendering Collateral Under Section 1329: Can the Debtor Have Her Cake and Eat It Too?, 12 Bankr.Dev. J. 501, 511-517 (1996). Two distinct positions have developed, depending upon whether the language of § 1329(a) — particularly subsection (a)(1)— is read expansively as allowing payment of the balance of a creditor’s claim as unsecured after surrender of its collateral, or more narrowly as simply not providing for reclassification of a creditor’s claim following confirmation. See id. at 502. The first line of cases, that of In re Jock, 95 B.R. 75 (Bankr.M.D.Tenn.1989), and its progeny, see e.g., In re Rimmer, 143 B.R. 871 (Bankr.W.D.Tenn.1992); In re Day, 247 B.R. 898 (Bankr.M.D.Ga.2000); In re Townley, 256 B.R. 697 (Bankr.D.N.J.2000), holds that the language of § 1329(a)(1) allowing a debtor “to increase or reduce the amount of payments on claims of a particular class” not only allows the debtor to" } ]

[ { "docid": "22983387", "title": "", "text": "the exclusion of others). We turn next to the district court’s evaluation of the public interest, which focused on the consumer’s right not to be confused as to the origin or source of the goods. By the very nature of a trademark action, the value placed on free competition must be weighed against any individual’s property interest in that trademark, so that the analytic focus should also be on the consumer’s ability to obtain the lowest priced goods. See Alexander’s, 299 F.2d at 37 (true nature of a trademark infringement action may be an attempt to shield against competition). That strong public interest in lowest possible prices was not taken into account here; neither was the interest in avoiding monopolies and in encouraging, not stifling, competition. See Chanel, 402 F.2d at 566-67 (citing Saxlehner, 216 U.S. at 380, 30 S.Ct. at 298-99.). Here, the fact that the district court did not appear to consider the broader economic implications of its grant of the preliminary injunction, as is required by the applicable case law, leads us to conclude that it was erroneous for the district court to determine that the public interest weighed in favor of granting Calvin Klein’s motion for a preliminary injunction. Finally, we review the district court’s conclusion that Calvin Klein demonstrated a threat of irreparable harm and that the balance of hardships tipped towards Calvin Klein. The district court concluded that Calvin Klein as the originator was in danger of suffering damage to its reputation and to its established goodwill. It further concluded that should Lenox ultimately prevail on the merits, Lenox could be compensated in money damages for any harm it incurred from the injunction. The court correctly noted that it could presume irreparable injury from a finding of probable success in proving likelihood of confusion. See Black Hills Jewelry Mfg. Co. v. Gold Rush, Inc., 633 F.2d 746, 753 (8th Cir.1980). Because we find that the district court erred in concluding that Calvin Klein had demonstrated probable success on the merits, its findings that the irreparable harm and balance of hardships factors also weigh in" } ]

[ { "docid": "5353876", "title": "", "text": "F.3d 1163, 1174 (3d Cir.1993) (consumers lack standing to bring Lanham Act false advertising claim), and that of other federal appellate courts. See Colligan v. Activities Club of New York, Ltd., 442 F.2d 686 (2d Cir.) (same), cert. denied, 404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971); Barrus v. Sylvania, 55 F.3d 468 (9th Cir.1995) (same); Dovenmuehle v. Gilldorn Mortgage Midwest Corp., 871 F.2d 697 (7th Cir.1989) (same). The congressionally-stated purpose of the Lanham Act, far from indicating an express intent to abrogate prudential standing doctrine, evidences an intent to lim it standing to a narrow class of potential plaintiffs possessing interests the protection of which furthers the purposes of the Lan-ham Act. The Lanham Act’s commercial subject matter and express statement of purpose thus distinguish it from the statute considered by the Supreme Court in Bennett. The Supreme Court noted that the subject matter of the ESA — the environment — readily admitted of a finding that Congress intended to expand standing to the limit permitted by Art. III. Bennett, 117 S.Ct. at 1163 (noting that “the subject of the legislation makes the intent to permit enforcement by every man even more plausible”). The same cannot be said of the expressly commercial purpose of the Lanham Act. Our conclusion regarding congressional intent is reinforced by the legislative history of the Lanham Act. The Senate Report regarding the Lanham Act repeatedly references the Act’s focus on anti-competitive conduct in the commercial arena.' See S.Rep. No. 1333, 79th Cong., 2d Sess. (1946), reprinted in 1946 U.S.C.C.A.N. 1274, 1275 (“There is no essential difference between trade-mark infringement and what is loosely called unfair competition.”); id. (goal of Lanham Act is “to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not”). The legislative history accompanying the 1988 revisions to the Lan-ham Act further emphasizes the Act’s focus on commercial, anti-competitive conduct. See S.Rep. No. 100-515, 100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 5577, 5604 (May 12,1988) (characterizing" }, { "docid": "2229232", "title": "", "text": "Stands, Inc. v. Hard Rock Cafe Intern., 951 F.2d 684, 696 (5th Cir.1992)); see also A & H Sportswear Inc. v. Victoria's Secret Stores, Inc., 166 F.3d 197 (3d Cir.1999). . Given Daffy's initial inquiry and its attempts to ensure that the bags were genuine before offering them for sale, Daffy's can be viewed as a victim of the same counterfeiting Gucci is complaining of. In addition, Daffy’s represents without contradiction that \"Gucci did not avail itself of other remedies,\" although the district court afforded it \"every opportunity to do so.” Appellant's Brief at 43. Daffy’s therefore convincingly argues that Gucci waived its right to seek actual damages under § 1117(a)(2), or to seek the counterfeit-specific remedy of statutory damages under § 1117(c).” Appellee’s Brief at 43. ROSENN, Circuit Judge, dissenting. The District Court erred in denying the plaintiff injunctive relief on the ground that Gucci had not sustained irreparable injury. The undisputed infringement of Gucci’s undisputed trademark constituted a prima facie case of irreparable injury as a matter of law. Indeed, this court has held that “trademark infringement amounts to irreparable injury as a matter of law.” S & R Corp. v. Jiffy Lube Int’l, Inc., 968 F.2d 371, 378 (3d Cir.1992). The District Court committed further error in denying Gucci the undisputed profits that Daffy’s realized in the sale of bags under Gucci’s trademark on the ground that Daffy’s did not infringe willfully. The court relied on SecuraComm Consulting, Inc. v. Securacom, Inc., 166 F.3d 182 (3d Cir.1999), which is not a counterfeiting case and is no longer binding precedent in light of subsequent statutory amendments. In considering the trade-mark statute as enacted in 1946, the Senate Committee on Patents reported: Trade-marks encourage the maintenance of quality by securing to the producer the benefit of the good reputation which excellence creates. To protect trademarks, therefore, is to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not. S.Rep. No. 79-1333," }, { "docid": "2229233", "title": "", "text": "held that “trademark infringement amounts to irreparable injury as a matter of law.” S & R Corp. v. Jiffy Lube Int’l, Inc., 968 F.2d 371, 378 (3d Cir.1992). The District Court committed further error in denying Gucci the undisputed profits that Daffy’s realized in the sale of bags under Gucci’s trademark on the ground that Daffy’s did not infringe willfully. The court relied on SecuraComm Consulting, Inc. v. Securacom, Inc., 166 F.3d 182 (3d Cir.1999), which is not a counterfeiting case and is no longer binding precedent in light of subsequent statutory amendments. In considering the trade-mark statute as enacted in 1946, the Senate Committee on Patents reported: Trade-marks encourage the maintenance of quality by securing to the producer the benefit of the good reputation which excellence creates. To protect trademarks, therefore, is to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not. S.Rep. No. 79-1333, at 1275 (1946). The District Court ignored the purpose of the trade-mark statute to protect the public from deceit and secure to the business community the advantages of its good name and reputation. It left the purchasers of 588 highly expensive counterfeit bags without any relief or even notice that the bags they were carrying were not genuine. The court’s decision does nothing to discourage trade-mark infringement but rewards a party to the deceit by allowing it to retain all of the profits obtained by the use of the producer’s good name and reputation. Moreover, the court denies the innocent trademark owner an injunction against future infringement and a recall of the spurious goods sold under the producer’s trade-mark and good name. Because the majority affirms that decision, I respectfully dissent. I. The majority concludes that Gucci America’s (Gucci’s) request for a recall of the 588 counterfeit handbags sold under the Gucci name shall be denied because the District Court’s findings of the difficulties to be encountered with such a remedy were not clearly erroneous." }, { "docid": "10798742", "title": "", "text": "As for the trademark and trade name infringement claims (hereinafter treated as a single trademark infringement claim), the court first considered whether Mil-Mar was likely to prevail on the merits. The court found that ‘Warehouse Shoes” was capable of protection as a trademark. The court rejected Shonac’s argument that the name was generic, as well as Mil-Mar’s claim that the name was suggestive (or arbitrary or fanciful). Instead, the court found the name descriptive, thus entitling it to protection only if Mil-Mar could establish its secondary meaning in the Greater Milwaukee area. The court concluded that Mil-Mar had shown a reasonable likelihood of success on its claim that “Warehouse Shoes” had acquired secondary meaning and also that there was a likelihood of consumer confusion between “Warehouse Shoes” and “DSW Shoe Warehouse.” As for Shonac’s affirmative defense that “DSW Shoe Warehouse” was a legally permissible “fair use” of the trademark “Shoe Warehouse,” the district court determined, as a matter of law, that fair use could not exist where there was likelihood of confusion. After then finding that Mil-Mar had demonstrated no adequate remedy at law and that Mil-Mar would suffer irreparable harm if the preliminary injunction was denied, and also that balancing the equities favored Mil-Mar, the district court granted Mil-Mar’s request for a preliminary injunction. The injunction prohibited Shonac’s use of the name “DSW Shoe Warehouse,” “Shoe Warehouse,” and any other name confusingly similar to “Warehouse Shoes” in the Greater Milwaukee area. II. Whether a preliminary injunction should be granted by a district court generally involves a four-part analysis. The district court begins by considering whether the moving party has demonstrated: 1) a reasonable likelihood of success on the merits, and 2) no adequate remedy at law and irreparable harm if preliminary relief is denied. If the moving party clears these hurdles, the court must then consider: 3) the irreparable harm the non-moving party will suffer if the injunction is granted balanced against the irreparable harm the moving party will suffer if the injunction is denied, and 4) the public interest, i.e., the effect that granting or denying the injunction" }, { "docid": "2825157", "title": "", "text": "prior registration of bronzy gold banded ampul; it is “of no consequence” that the PTO color designating lines are the same for yellow and gold). We conclude that OCF’s use of the color “pink” performs no non-trademark function, and is consistent with the commercial and public purposes of trademarks. A pink color mark registered for fibrous glass insulation does not confer a “monopoly” or act as a barrier to entry in the market. It has no relationship to production of fibrous glass insulation. It serves the classical trademark function of indicating the origin of the goods, and thereby protects the public, as discussed in the legislative history of the Lanham Act: Trade-marks, indeed, are the essence of competition, because they make possible a choice between competing articles by enabling the buyer to distinguish one from the other. Trade-marks encourage the maintenance of quality by securing to the producer the benefit of the good reputation which excellence creates. To protect trade-marks, therefore, is to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not. This is the end to which this bill is directed. S.Rep. No. 1333, 79th Cong., 2d Sess. 4, reprinted in 1946 U.S.Code Cong. & Ad.News 1274, 1275. That a trademark confers no monopoly was settled by the Supreme Court in United Drug Co. v. Rectanus Co., 248 U.S. 90, 97-98, 39 S.Ct. 48, 50-51, 63 L.Ed. 141 (1918): [T]he right to a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his____ In truth, a trade-mark confers no monopoly whatever in the proper sense, but is merely a convenient means for facilitating the protection of one’s good-will in trade by placing a distinguishing mark or symbol — a commerical signature — upon the merchandise or the package in which" }, { "docid": "5353895", "title": "", "text": "while there may be circumstances in which a non-competitor may have standing to sue as we noted earlier, the focus of the Lanham Act is on “commercial interests [that] have been harmed by a competitor’s false advertising,” Granite State Ins. Co. v. Aamco Transmissions, Inc., 57 F.3d 316, 321 (3d Cir.1995) (emphasis in original), and in “securing] to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not.” S.Rep. No. 1333, 79th Cong., 2d Sess. (1946), reprinted in 1946 U.S.C.C.A.N. 1274, 1275. While the Appellants have alleged a commercial interest, they have not alleged competitive harm. Nor is there any indication that Appellants’ good will or reputation have been harmed directly or indirectly. This is in contrast to cases like Waits and Camel Hair, in which the plaintiffs’ good will and reputation were impacted by the defendants’ conduct — in Waits by falsely assuming the plaintiffs voice, and in Camel Hair by falsely representing the characteristics of products marketed by the plaintiffs. As the District Court stated, “plaintiffs do not allege that defendants ran advertisements that said ‘don’t buy engine additive at Conte Brothers or Hi/Tor — instead, buy Slick 50 directly from the manufacturer.’ ” Conte Bros., 992 F.Supp. at 715. The type of injury suffered by Appellants — loss of sales at the retail level because of alleged false advertising — does not impact the Appellants’ ability to compete; nor does it detract from the Appellants’ reputation or good will. Therefore, the alleged harm is not of the “type that Congress sought to redress” by enacting the Lanham Act. Associated General, 459 U.S. at 538, 103 S.Ct. 897. Appellants’ remoteness from the allegedly harmful conduct also weighs against recognizing a right to sue on these facts. Here, as in Associated General, the “existence of an identifiable class of persons” — manufacturers of competing products — “whose self-interest would normally motivate them to vindicate the public interest ... diminishes the justification for allowing a more remote party ... to perform the office of a" }, { "docid": "10798740", "title": "", "text": "States, under the name “DSW Shoe Warehouse.” Shonac spends millions of dollars advertising these stores each year. In May 1995, Mil-Mar learned that Shonac planned to open a “DSW Shoe Warehouse” store in Wauwatosa, Wisconsin (i.e., within the Greater Milwaukee area) in October 1995. Mil-Mar promptly contacted Shonac requesting that it not use the “Shoe Warehouse” portion of the name. When Shonac refused to give up the name, Mil-Mar brought this action. In addition to the above information, the district court considering Mil-Mar’s preliminary injunction request had the following facts before it. The shoe stores run by Mil-Mar and Shonac are virtually idehtieal in form, concept, and target customer. Both corporations run large, high-volume retail stores that carry a great variety of name brand shoes at discount prices. The Wisconsin location chosen by Shonac is in a high traffic area, near a mall, and approximately three blocks from one of Mil-Mar’s “Warehouse Shoes” stores. Hence Mil-Mar and Shonac would be in direct competition for area business. Shonac also put on evidence that, nationwide, 1) over 20,000 businesses use “warehouse” in their name, 2) over 8000 of which are retail stores, and 3) that hundreds of retail shoe stores use either “Warehouse Shoes” or “Shoe Warehouse” in their names. The district court treated Mil-Mar’s three claims as follows. First, the court determined that the common law trade name infringement claim and the statutory trademark infringement claim under Wis.Stat. § 132.033 were subject to the same legal analysis. Mil-Mar conceded that registration of a trade name or mark in Wisconsin' does not confer specific rights to the holder. Hence the only question was whether ‘Warehouse Shoes” could be protected as a de facto trademark by temporarily enjoining use of the name “DSW Shoe Warehouse.” Second, the court found that an unfair competition claim requires evidence that the defendant intended to mislead or deceive the public into believing that its product was associated with that of the plaintiff. Since Mil-Mar presented no evidence that Shonac intended to “palm off’ its stores as belonging to Mil-Mar’s chain, the court rejected the unfair competition claim." }, { "docid": "23692872", "title": "", "text": "it would not hold ERA to a “strict standard” of proof of its trade territory, because of the delay. To determine the trade territory, the district court determined ERA’s trade territory based “primarily on the evidence of the geographic extent of ERA’s continuous radio advertising and its reputation.” It also relied on ERA’s evidence “regarding the geographic origin of its customers.” This evidence came primarily from Harris and Shirani Rea, who co-owned and operated ERA. The district court issued a permanent injunction that allowed ERA to advertise in a seven parish territory, but limited future store expansion to Orleans and Jefferson Parish, the two parishes where ERA had operated stores. LAW In 1946, Congress passed the Lanham Act in order to federalize the common law protection of trademarks used in interstate commerce. See Lanham Trademark Act of 1946, c. 540, 60 Stat. 427 (codified as amended at 15 U.S.C. §§ 1051-1127). The Act was designed to protect both consumers’ confidence in the quality and source of goods and services and protect businesses’ goodwill in their products by creating a federal right of action for trademark infringement. S.Rep. No. 1333, 79th Cong., 2d Sess. at 1, reprinted in 1946 U.S.Cong.Serv. 1274. Owners of a federally recognized trademark, 15 U.S.C. § 1052, service mark 15 U.S.C. § 1053, or other collective mark, 15 U.S.C. § 1054; see also, 15 U.S.C. § 1127 (defining types of marks), may bring suit in federal court for damages or injunctive relief against users of similar marks whose use is “likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1114. The basic scheme that creates rights under the Lanham Act is a national registration system. Under the common law, use of a distinctive mark in commerce only created a right through priority and market. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97, 39 S.Ct. 48, 50-51, 63 L.Ed. 141 (1918) (“There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is" }, { "docid": "10798738", "title": "", "text": "FLAUM, Circuit Judge. Mil-Mar Shoe Company, Inc., (“Mil-Mar”) brought this action against the Shonae Corporation (“Shonae”), in Wisconsin state court, alleging common law trade name infringement, statutory trademark infringement under Wis.Stat. § 132.033, and unfair competition. Mil-Mar, owner of a chain of stores under the name “Warehouse Shoes,” sought a temporary restraining order and a preliminary injunction to prevent Shonae from using the name “DSW Shoe Warehouse” (or any similar construction) to designate the retail shoe store that Shonae announced would be opened in the Greater Milwaukee area. The temporary restraining order was granted pending a hearing on the preliminary injunction. Shonae removed the case to federal court on the basis of diversity. 28 U.S.C. § 1332(a)(1). After a hearing on the matter, the district court granted the preliminary injunction, enjoining Shonae from using “DSW Shoe Warehouse,” “Shoe Warehouse,” or any other name confusingly similar to “Warehouse Shoes” in the Greater Milwaukee area. We reverse. I. Mil-Mar is a Wisconsin corporation that operates seventeen stores in the Greater Milwaukee area under the name “Warehouse Shoes” (four of which are called “Super Warehouse Shoes”). At least since 1970, Mil-Mar has continuously used and adver tised the “Warehouse Shoes” name in the area. Mil-Mar has registered trademarks for ‘Warehouse Shoes” and “Super Warehouse Shoes” with the Wisconsin Secretary of State. Mil-Mar currently spends over a million dollars a year advertising its stores under these names, and it has captured a significant share of the Greater Milwaukee shoe market. The ‘Warehouse Shoes” name is well-known in the area. Shonac is an Ohio corporation founded in 1969 to operate retail shoe stores throughout the country. Shonac first began operating warehouse-type shoe stores in 1991, when it opened a store in Ohio under the name “Designer Shoe Warehouse.” In 1994 the name was changed to “DSW Shoe Warehouse.” Shonac has United States trademark registrations for its DSW logo and the name “DSW Shoe Warehouse,” though the United States Patent & Trademark Office required Shonac to disclaim any right to exclusive use of “Shoe Warehouse” by itself. Shonac currently operates twenty stores, located throughout the United" }, { "docid": "10798754", "title": "", "text": "of a term by competitors in the industry has traditionally been recognized, along with dictionary evidence, as indicating genericness. Miller Brewing, 561 F.2d at 80; 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 12.02[7][b] (3d ed.1995). Shonae has presented evidence that hundreds of retail shoe stores use some form of either “Shoe Warehouse” or ‘Warehouse Shoes” in their names. Although none of these stores were competing directly with Mil-Mar’s “Warehouse Shoes” stores in the Greater Milwaukee area, and thus Mil-Mar had no incentive or standing to challenge these names, the breadth of the use nationally by other shoe retailers further substantiates our ultimate conclusion that both “Shoe Warehouse” and Warehouse Shoes” are generic. Both parties make much of the fact that Mil-Mar’s “Warehouse Shoes” and Shonac’s “Shoe Warehouse” are different terms. Shonae argues strenuously on appeal (as it did at the hearing below) that even if Warehouse Shoes” is not generic, their own store name — “Shoe Warehouse” — is generic, and thus its use cannot possibly be enjoined. The decision of the district court ignores this argument, focussing its entire genericness analysis on whether “Warehouse Shoes” is protectable as a trademark. Shonae is correct that “Shoe Warehouse,” like “Shoe Outlet” or “Shoe Mart,” definitely qualifies as generic; it is the generic term for a particular type of retail store that sells shoes. As such, it would appear that Shonae’s right to use the term genetically in the name “DSW Shoe Warehouse” should be unfettered. See Henri’s Food, 817 F.2d at 1305 (noting that generic names are “irretrievably in the public domain”); 2 McCarthy, § 12.01[2] (“Generic names are regarded by the law as free for all to use. They are in the public domain.”). On the other hand, the district court found 1) that “Warehouse Shoes” was descriptive, rather than generic, 2) that the term had developed secondary meaning, and 3) that there was a likelihood of confusion between “Warehouse Shoes” and “Shoe Warehouse.” Thus the court enjoined Shonac’s use of “Shoe Warehouse” and the like. This raises an interesting analytical question. Can the holder of" }, { "docid": "10798762", "title": "", "text": "term has developed a secondary meaning, it is unprotectable as a trademark.”); National Conference, 692 F.2d at 487 (same). Allowing a generic term to have trademark protection would overstep the purposes of trademark law and violate fundamental concepts of fair competition. “[I]t is no purpose of trademark protection to allow a firm to prevent its competitors from informing consumers about the attributes of the competitors’ brands____ [A company] cannot appropriate the English language, and by doing so render a competitor inarticulate.” Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 609-10 (7th Cir.1986). Because we conclude that both “Warehouse Shoes” and “Shoe Warehouse” are generic terms as used by Mil-Mar and Shonac, Mil-Mar has no probability of success on the merits. Miller Brewing, 561 F.2d at 81. Thus we Reverse the district court’s grant of the preliminary injunction against Shonac. . The district court found that “Mil-Mar and Shonac have identical products and are competing for an identical, cost conscious market.” . The following is a small sample of the shoe store names: Warehouse Shoe Sale, Comfort Shoe Warehouse, Men's Designer Shoe Warehouse, Shoe Warehouse, National Shoe Warehouse, The Shoe Warehouse, Warehouse Shoe Club, Shoes Warehouse, Mega Shoe Warehouse, Warehouse Shoe Outlet, Super Sales Warehouse Shoes, Sports Square Warehouse Shoes. . Mil-Mar does not contest the district court's unified approach to these claims; thus we take the same approach on appeal. . Mil-Mar does not appeal this finding, and we address it no further. . The court ordered Mil-Mar to post a security bond in the amount of $20,000. . Shonac has since opened the proposed store under the name “DSW Shoes.” . At oral argument Mil-Mar’s counsel proposed that the name “Warehouse Shoes’’ is at least descriptive, and is probably suggestive, if not arbitrary or fanciful. Mil-Mar's position in its brief on appeal, however, is simply that “Warehouse Shoes\" is not generic. At any rate, our conclusion that the term is generic precludes any other designation. . Shonac argues that even if “Warehouse Shoes” is not generic, the phrase \"Shoe Warehouse” is generic; thus \"Shoe Warehouse\" is equally" }, { "docid": "18704538", "title": "", "text": "is likely to be damaged. 375 F.Supp. at 784. While Skil Corporation, in reaching its result, looked at the changes wrought by the revamped legislation that court’s ratio decidendi is bulwarked by a review of the contemporaneous remarks of the Congress. The seminal document is a report of the Senate Committee on Patents, S.Rep. No. 1333 (May 14, 1946), reprinted in 1946 U.S.Code Cong. & Ad.News at 1274 et seq. (Report). The Report plainly indicates that the goals of the Lanham Act included, inter alia, a desire “to secure trade-mark owners in the goodwill which they have built up, and to protect the public from imposition by the use of counterfeit and imitated marks and false trade descriptions.” Id. at 1276 (emphasis added). “Sound public policy” was viewed by the seventy-ninth Congress in the light of “prevent[ing] diversion of trade through misrepresentation, and the protection of the public against deception.” Id. at 1277. The purport of the Act was equated with “protection against swindling,” id. at 1275, and concern was voiced anent “misappropriation by pirates and cheats.” Id. at 1274. The Committee remarked that “[t]he purpose of this bill is ... to make it stronger and more liberal, to dispense with mere technical prohibitions and arbitrary provisions, to make ... relief against infringement prompt and effective.” Id. And, the Report stated: To protect trademarks, therefore, is to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not. This is the end to which this bill is directed. Id. at 1275. This is heady stuff; and it leaves scant room to doubt that the enacting Congress sought to expand the reach of national legislation so as to accomplish these ends. The Senate’s emphasis on consumer protection was innovative at the time, and militates strongly in favor of an expansive reading of the statute. While this court is mindful that the Lanham Act is not to be interpreted to encompass every conceivable type of" }, { "docid": "5353877", "title": "", "text": "at 1163 (noting that “the subject of the legislation makes the intent to permit enforcement by every man even more plausible”). The same cannot be said of the expressly commercial purpose of the Lanham Act. Our conclusion regarding congressional intent is reinforced by the legislative history of the Lanham Act. The Senate Report regarding the Lanham Act repeatedly references the Act’s focus on anti-competitive conduct in the commercial arena.' See S.Rep. No. 1333, 79th Cong., 2d Sess. (1946), reprinted in 1946 U.S.C.C.A.N. 1274, 1275 (“There is no essential difference between trade-mark infringement and what is loosely called unfair competition.”); id. (goal of Lanham Act is “to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not”). The legislative history accompanying the 1988 revisions to the Lan-ham Act further emphasizes the Act’s focus on commercial, anti-competitive conduct. See S.Rep. No. 100-515, 100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 5577, 5604 (May 12,1988) (characterizing “competition between the parties” as a “traditional trademark infringement question[ ]”); id. at 5603 (identifying deterrence of acts of “unfair competition” as goal of Lanham Act). Our case law also recognizes the essentially commercial nature of the Lanham Act. Granite State Ins. Co. v. Aamco Transmissions, Inc., 57 F.3d 316, 321 (3d Cir.1995) (focus of the statute is on “commercial interests [that] have been harmed by a competitor’s false advertising.”) (emphasis in original). In enacting the Lanham Act in 1946, Congress sought to bring together various statutes regarding trademark protection that previously had been scattered throughout the United States Code. See id. at 1275-76 (“There are many reasons why there should be a new trade-mark statute- [Trademark statutes have] been amended from time to time and supplemented by the act of March 19, 1920, which has also been amended in several particulars. The result is a confused situation.... It seems desirable to collect these various statutes and have them in a single enactment.”). Nothing in the Lanham Act’s legislative history evidences an intent to work" }, { "docid": "10798739", "title": "", "text": "(four of which are called “Super Warehouse Shoes”). At least since 1970, Mil-Mar has continuously used and adver tised the “Warehouse Shoes” name in the area. Mil-Mar has registered trademarks for ‘Warehouse Shoes” and “Super Warehouse Shoes” with the Wisconsin Secretary of State. Mil-Mar currently spends over a million dollars a year advertising its stores under these names, and it has captured a significant share of the Greater Milwaukee shoe market. The ‘Warehouse Shoes” name is well-known in the area. Shonac is an Ohio corporation founded in 1969 to operate retail shoe stores throughout the country. Shonac first began operating warehouse-type shoe stores in 1991, when it opened a store in Ohio under the name “Designer Shoe Warehouse.” In 1994 the name was changed to “DSW Shoe Warehouse.” Shonac has United States trademark registrations for its DSW logo and the name “DSW Shoe Warehouse,” though the United States Patent & Trademark Office required Shonac to disclaim any right to exclusive use of “Shoe Warehouse” by itself. Shonac currently operates twenty stores, located throughout the United States, under the name “DSW Shoe Warehouse.” Shonac spends millions of dollars advertising these stores each year. In May 1995, Mil-Mar learned that Shonac planned to open a “DSW Shoe Warehouse” store in Wauwatosa, Wisconsin (i.e., within the Greater Milwaukee area) in October 1995. Mil-Mar promptly contacted Shonac requesting that it not use the “Shoe Warehouse” portion of the name. When Shonac refused to give up the name, Mil-Mar brought this action. In addition to the above information, the district court considering Mil-Mar’s preliminary injunction request had the following facts before it. The shoe stores run by Mil-Mar and Shonac are virtually idehtieal in form, concept, and target customer. Both corporations run large, high-volume retail stores that carry a great variety of name brand shoes at discount prices. The Wisconsin location chosen by Shonac is in a high traffic area, near a mall, and approximately three blocks from one of Mil-Mar’s “Warehouse Shoes” stores. Hence Mil-Mar and Shonac would be in direct competition for area business. Shonac also put on evidence that, nationwide, 1) over" }, { "docid": "23308292", "title": "", "text": "accorded by the law of patents because each is directed at a different purpose. The latter protects inventive activity which, after a term of years, is dedicated to the public domain. The former protects commercial activity which, in our society, is essentially private. As stated in Application of Mogen David Wine Corporation, 328 F.2d 925, 929 (C.C.P.A.1964): “[T]he law recognizes that the protection accorded to a design under the patent laws and that accorded to what amounts to a trademark under the common law doctrine of secondary meaning are separate and distinct, and that the rights conferred by law in the one in no way exclude the rights conferred by law in the other.” The underlying purpose and the essence of patent rights are separate and distinct from those appertaining to trademarks. No right accruing from the one is dependent upon or conditioned by any right concomitant to the other. The longevity of the exclusivity of one is limited by law while the other may be extended in perpetuity. Free competition is served in both cases. Full and fair competition requires that those who invest time, money and energy into the development of goodwill and a favorable reputation be allowed to reap the advantages of their investment. See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 492, 493, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974); 2 Callmann, Unfair Competition, Trademarks and Monopolies § 60.4(b) at 516 (3rd Ed. 1968). As the legislative history of the Lanham Act states: Trade-marks, indeed, are the essence of competition, because they make possible a choice between competing articles by enabling the buyer to distinguish one from the other. Trade-marks encourage the maintenance of quality by securing to the producer the benefit of the good reputation which excellence creates. To protect trade-marks, therefore, is to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not. Senate Report No. 1333, 1946 U.S.Code Cong.Serv., p. 1275. To protect" }, { "docid": "10798761", "title": "", "text": "Warehouse Shoes” and “Shoe Warehouse” are generic, we need not address the district court’s finding that Warehouse Shoes” had secondary meaning in the Greater Milwaukee area and that the two store names were likely to be confused. We also do not address the district court’s legal conclusion that fair use can never serve as a defense to a trademark infringement claim where a likelihood of confusion is established. When a term is generic, protection as a trademark is categorically precluded. Liquid Controls, 802 F.2d at 935; Miller Brewing, 561 F.2d at 79. Evidence that the term is, de facto, strongly associated with a particular source of goods is irrelevant. “[A] generic term ... may not be exclusively appropriated as a trademark, regardless of the length of time it may have been used by a single distributor at the consumer level and despite whatever promotional effort he may have expended to exploit it.” Henry Heide, Inc. v. George Ziegler Co., 354 F.2d 574 (7th Cir.1965); see also Technical, 729 F.2d at 1141 (“[E]ven if a generic term has developed a secondary meaning, it is unprotectable as a trademark.”); National Conference, 692 F.2d at 487 (same). Allowing a generic term to have trademark protection would overstep the purposes of trademark law and violate fundamental concepts of fair competition. “[I]t is no purpose of trademark protection to allow a firm to prevent its competitors from informing consumers about the attributes of the competitors’ brands____ [A company] cannot appropriate the English language, and by doing so render a competitor inarticulate.” Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 609-10 (7th Cir.1986). Because we conclude that both “Warehouse Shoes” and “Shoe Warehouse” are generic terms as used by Mil-Mar and Shonac, Mil-Mar has no probability of success on the merits. Miller Brewing, 561 F.2d at 81. Thus we Reverse the district court’s grant of the preliminary injunction against Shonac. . The district court found that “Mil-Mar and Shonac have identical products and are competing for an identical, cost conscious market.” . The following is a small sample of the shoe store names: Warehouse" }, { "docid": "5353894", "title": "", "text": "Id. at 542, 103 S.Ct. 897. Finally, the Supreme Court pointed to the indirect nature of the union’s injury as implicating practical concerns of judicial administration. If remote plaintiffs like the union were to be permitted to sue for damages, “potential plaintiffs at each level in the distribution chain would be in a position to assert conflicting claims to a common fund ... thereby creating the danger of multiple liability” on the one hand or a “massive and complex” damages litigation on the other. Id. at 544-55, 103 S.Ct. 897. The Supreme Court concluded: [T]he nature of the Union’s injury, the tenuous and speculative character of the relationship between the alleged antitrust violation and the Union’s alleged injury, the potential for duplicative recovery or complex apportionment of damages, and the existence of more direct victims of the alleged conspiracy [ ] weigh heavily against judicial enforcement of the Union’s antitrust claim. Id. at 545, 103 S.Ct. 897. Applying these same factors to Appellants’ Lanham Act claim similarly weighs against judicial enforcement of this claim. First, while there may be circumstances in which a non-competitor may have standing to sue as we noted earlier, the focus of the Lanham Act is on “commercial interests [that] have been harmed by a competitor’s false advertising,” Granite State Ins. Co. v. Aamco Transmissions, Inc., 57 F.3d 316, 321 (3d Cir.1995) (emphasis in original), and in “securing] to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not.” S.Rep. No. 1333, 79th Cong., 2d Sess. (1946), reprinted in 1946 U.S.C.C.A.N. 1274, 1275. While the Appellants have alleged a commercial interest, they have not alleged competitive harm. Nor is there any indication that Appellants’ good will or reputation have been harmed directly or indirectly. This is in contrast to cases like Waits and Camel Hair, in which the plaintiffs’ good will and reputation were impacted by the defendants’ conduct — in Waits by falsely assuming the plaintiffs voice, and in Camel Hair by falsely representing the characteristics of products marketed by" }, { "docid": "3088058", "title": "", "text": "an accounting of profits can serve no reasonable end. The legislative history of the Lanham Act expressly states the purpose of the Act: “This bill, as any other proper legislation on trade-marks, has as its object the protection of trade-marks, securing to the owner the good will of his business and protecting the public against spurious and falsely marked goods. The matter has been approached with the view of protecting trademarks and making infringement and piracy unprofitable.” S.Rep. No. 1333, 79th Cong., 2d Sess. 1-2 (1946). (Emphasis added) It is unnecessary for this court to determine whether all of the decisions under the Lanham Act which have viewed an accounting of profits as merely a method of compensating the trade-mark registrant for his lost or diverted sales have fulfilled these goals. The question which we must answer is whether such a restrictive approach to an accounting of profits fulfills these goals today. We think it does not; and apparently the district court judge, in holding that the appellants would be unjustly enriched if an accounting were denied, thought it did not. Earlier in our country’s history it may have been necessary to copy both the trade-mark and the product of another in order to obtain a free ride on the good reputation of that product and its maker. In such an instance requiring direct competition between the parties as a prerequisite to the granting of an accounting of profits would have been both just and logical. This, however, is the age of television and mass communications. Fortunes are spent in publicizing a name, often with only slight reference to the real utility of the product. The theory behind this modern advertising is that once the name or trade-mark of a product is firmly associated in the mind of the buying public with some desired characteristic — quality, social status, etc. — the public will buy that product. This psychological effect was recognized by the United States Supreme Court when, in Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 205, 62 S.Ct. 1022, 1024, 86" }, { "docid": "10798741", "title": "", "text": "20,000 businesses use “warehouse” in their name, 2) over 8000 of which are retail stores, and 3) that hundreds of retail shoe stores use either “Warehouse Shoes” or “Shoe Warehouse” in their names. The district court treated Mil-Mar’s three claims as follows. First, the court determined that the common law trade name infringement claim and the statutory trademark infringement claim under Wis.Stat. § 132.033 were subject to the same legal analysis. Mil-Mar conceded that registration of a trade name or mark in Wisconsin' does not confer specific rights to the holder. Hence the only question was whether ‘Warehouse Shoes” could be protected as a de facto trademark by temporarily enjoining use of the name “DSW Shoe Warehouse.” Second, the court found that an unfair competition claim requires evidence that the defendant intended to mislead or deceive the public into believing that its product was associated with that of the plaintiff. Since Mil-Mar presented no evidence that Shonac intended to “palm off’ its stores as belonging to Mil-Mar’s chain, the court rejected the unfair competition claim. As for the trademark and trade name infringement claims (hereinafter treated as a single trademark infringement claim), the court first considered whether Mil-Mar was likely to prevail on the merits. The court found that ‘Warehouse Shoes” was capable of protection as a trademark. The court rejected Shonac’s argument that the name was generic, as well as Mil-Mar’s claim that the name was suggestive (or arbitrary or fanciful). Instead, the court found the name descriptive, thus entitling it to protection only if Mil-Mar could establish its secondary meaning in the Greater Milwaukee area. The court concluded that Mil-Mar had shown a reasonable likelihood of success on its claim that “Warehouse Shoes” had acquired secondary meaning and also that there was a likelihood of consumer confusion between “Warehouse Shoes” and “DSW Shoe Warehouse.” As for Shonac’s affirmative defense that “DSW Shoe Warehouse” was a legally permissible “fair use” of the trademark “Shoe Warehouse,” the district court determined, as a matter of law, that fair use could not exist where there was likelihood of confusion. After then finding" }, { "docid": "22546793", "title": "", "text": "the product at issue — a velcro belt — was functional and lacked “any distinctive, unique or non-fimctional mark or feature.” 652 F. 2d, at 305. Similarly, in Stormy Clime Ltd. v. ProGroup, Inc., 809 F. 2d 971, 977 (1987), the court described functionality as a continuum, and placed the contested rainjacket closer to the functional end than to the distinctive end. Although the court described the lightweight bag in LeSportsac, Inc. v. K mart Corp., 754 F. 2d 71 (1985), as having a distinctive appearance and concluded that the District Court’s finding of nonfunctionality was not clearly erroneous, id., at 74, it did not explain why secondary meaning was also required in such a case. The Senate Report elaborated on these two goals: “The purpose underlying any trade-mark statute is twofold. One is to protect the public so it may be confident that, in purchasing a product bearing a particular trade-mark which it favorably knows, it will get the product which it asks for and wants to get. Secondly, where the owner of a trade-mark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats. This is the well-established rule of law protecting both the public and the trade-mark owner.” S. Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946). By protecting trademarks, Congress hoped “to protect the public from deceit, to foster fair competition, and to secure to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not. This is the end to which this bill is directed.” Id., at 4. Forty years later, the USTA Trademark Review Commission assessed the state of trademark law. The conclusion that it reached serves as a testimonial to the success of the Act in achieving its goal of uniformity: “The federal courts now decide, under federal law, all but a few trademark disputes. State trademark law and state courts are less influential than ever. Today the Lanham Act is the" } ]

[ { "docid": "21921164", "title": "", "text": "AFR 36-15 imposes an arbitrary and irrational age limitation, and that its application to him constitutes age discrimination in violation of his rights under the fifth and fourteenth amendments. The district court deemed the challenged regulation inappropriate for judicial review, and dismissed the complaint. On appeal Nieszner argues that he presented a justiciable, constitutional claim against the military which the district court should have considered on the merits. II. Discussion. In dismissing Nieszner’s claim, the district court relied on Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), in which the Fifth Circuit noted the traditional judicial reluctance to interfere with internal military affairs. What we really determine is a judicial policy akin to comity. It is a determination made up of several subjective and interrelated factors. Traditional judicial trepidation over interfering with the military establishment has been strongly manifested in an unwillingness to second-guess judgments requiring military expertise and in a reluctance to substitute court orders for discretionary military decisions. Concern has also been voiced that the courts would be inundated with servicemen’s complaints should the doors of reviewability be opened. But the greatest reluctance to accord judicial review has stemmed from the proper concern that such review might stultify the military in the performance of its vital mission. [Mindes v. Seaman, supra, 453 F.2d at 199.] Recognizing, however, that “the courts have not entirely refrained from granting review and sometimes subsequent relief[,]” id., the Mindes court considered a range of cases reflecting the competing policies for and against judicial review of claims against the military. Id. at 199-201. From these, the court distilled a two-part test for determining whether to review such claims. First, a plaintiff challenging an internal military decision must allege a violation of the Constitution, a statute, or military regulation, and demonstrate exhaustion of intraservice remedies. If a plaintiff satisfies the first step, the trial court must then balance four factors to determine the claim’s suitability for judicial review: (1) the nature and strength of the plaintiff’s challenge to the military determination; (2) the potential injury to the plaintiff if review is refused; (3) the" } ]

[ { "docid": "5075103", "title": "", "text": "(1986). With equal, if not stronger force, matters related to foreign policy are rarely proper subjects for judicial intervention. Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640 (1981). In Williams v. Wilson, 762 F.2d 357 (4th Cir.1985), the Fourth Circuit adopted the Fifth Circuit’s framework for determining whether a court should review a military decision as set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971). As a threshold matter, there must be an “allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations ... and [the exhaustion] of available intraserviee corrective measures.” Mindes, 453 F.2d at 201. Defendant concedes that Plaintiff has met the two threshold requirements. Defendant argues that Plaintiff cannot satisfy the four-part Mindes balancing test. The four factors are: (1) the nature and strength of the plaintiffs challenge to the military determination; (2) the potential injury to the plaintiff if review is refused; (3) the type and degree of anticipated interference with the military function; and (4) the extent to which the exercise of military discretion is involved. Id. at 201; Guerra v. Scruggs, 942 F.2d 270, 276-77 (4th Cir.1991). As to the first factor, it must be kept in mind that “[a]n obviously tenuous claim of any sort must be weighted in favor of declining review.” Mindes, 453 F.2d at 201. The Defendant contends that the Plaintiff mischaraeterizes the decisions of CO, NASSIG, in an effort to state a constitutional claim, and avers that the 1948 Treaty, Congressional legislation and agency instructions properly restrict the Plaintiff from maintaining a law office in his on-base quarters. In 1985 the Military Family Act (“Act”), contained in the Department of Defense Authorization Act, P.L. 99-145, was implemented by Congress. This Act was designed to encourage employment opportunities for military spouses. As such, the Act directed the Secretary of Defense to develop “a plan that would permit limited commercial activities to be carried out from military family housing units by members of the armed forces and their" }, { "docid": "8589112", "title": "", "text": "eleventh amendment barred the claims against the National Guard and Adjutant General Lienza in his official capacity, and that the Advisory Board members were federal officers who could be sued only under the Federal Tort Claims Act. The district court also ruled that the entire case was a nonjusticiable military matter. Penagaricano appealed to this court. We agree that Penagaricano’s claims present a nonjusticiable military controversy and affirm on that basis. We reach this result, however, somewhat differently than did the district court. In particular, we do not see Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), a case relied on heavily below, as directly controlling, although, to be sure, the Supreme Court’s emphasis in that decision on the importance of the military’s decisionmaking autonomy is relevant. Chappell involved the question of whether the Court would recognize a Bivens -type cause of action for enlisted men suing their superior officers. By contrast, the determining issue here is whether Penagaricano’s claim to reinstatement is justiciable given the special characteristics of the military setting. Although the “special factors” the Court discussed in deciding not to fashion a Bivens remedy are con siderations to be balanced in the justiciability equation, the Chappell reasoning does not directly control the issue before us. The analysis this and most other circuits have endorsed for determining the reviewability of claims arising incident to military service was first stated by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971). See Pauls v. Secretary of the Air Force, 457 F.2d 294 (1st Cir.1972); see also Rucker v. Secretary of the Army, 702 F.2d 966 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Lindenau v. Alexander, 663 F.2d 68 (10th Cir.1981); NeSmith v. Fulton, 615 F.2d 196 (5th Cir.1980); Schlanger v. United States, 586 F.2d 667 (9th Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979); Williams v. United States, 541 F.Supp. 1187 (E.D.N.C.1982); Doe v. Alexander, 510 F.Supp. 900 (D.Minn.1981); BenShalom v. Secretary" }, { "docid": "22983559", "title": "", "text": "suit in Court of Claims); Ex Parte Reed, 100 U.S. 13, 25 L.Ed. 538 (1879) (habeas corpus). See generally Rosen, Civilian Courts and the Military Justice System: Collateral Review of Courts-Martial, 108 Mil.L.Rev. 5, 67 & n. 390 (1985). Williams makes no allegation before us that his conviction was not within the scope of the jurisdiction and duty of the military court. . In Mindes v. Seamans, 453 F.2d 197, 201 (5th Cir.1971), the court said that (1) allegation of a deprivation of a constitutional right or violation of statute or regulations, and (2) exhaustion of remedies provided by the military, are necessary, but added four further factors to consider before a court may exercise jurisdiction to review military affairs. Id. at 201-02. The Mindes test has been followed by a number of courts. See Williams v. Wilson, 762 F.2d 357, 359 (4th Cir.1985); Penagaricano v. Llenza, 747 F.2d 55, 60-61 (1st Cir.1984); Gonzalez v. Department of Army, 718 F.2d 926, 929-30 (9th Cir.1983); Rucker v. Secretary of the Army, 702 F.2d 966, 969-70 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562, 563-64 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Lindenau v. Alexander, 663 F.2d 68, 71 (10th Cir.1981); West v. Brown, 558 F.2d 757 (5th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978). Another circuit, while declining to follow the entire Mindes approach, see Dillard v. Brown, 652 F.2d 316, 323 (3d Cir.1981), followed that portion holding exhaustion as a prerequisite. See Bowman v. Wilson, 672 F.2d 1145 (3d Cir.1982). . Congress amended § 1552 in 1983 to limit the Board’s power to correction of records \"to reflect actions taken by reviewing authorities____’’ 10 U.S.C. § 1552(f) (1982 & Supp.1983). However, this change was not effective until December 6, 1983, nearly six months after Williams was convicted by the Special Court-Martial and had filed this present action. . The Court of Claims has consistently upheld the general rule requiring exhaustion, limiting exception to certain specific circumstances not present here. See, e.g., Hagarty v. United States, 449 F.2d" }, { "docid": "10956080", "title": "", "text": "the military in the performance of its vital mission.” Mindes, 453 F.2d at 199-201 (citations omitted). While in Lindenau the Tenth Circuit ultimately declined to review plaintiffs administrative discharge from the National Guard, it adopted the two-part test for determining reviewability of military action articulated by the Fifth Circuit in Mindes v. Seaman, 453 F.2d at 201-02. As summarized by the Fifth Circuit in a later decision, the Mindes test requires a court contemplating review of an internal military determination first to determine whether the case involves an alleged violation of a constitutional right, applicable statute, or regulation, and whether intraservice remedies have been exhausted. If so, the court is then to weigh the nature and strength of the challenge to the military determination, the potential injury to the plaintiff if review is refused, the type and degree of anticipated interference with the military function, and the extent to which military discretion or expertise is involved in the challenged decision. NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir.1980), quoted in Lindenau, 663 F.2d at 71. Courts in this circuit have granted review where the constitutional or statutory claim is “serious” and the potential injury to plaintiff outweighs any interference with military functions. E.g. Coppedge v. Marsh, 532 F.Supp. 423, 427 (D.Kan.1982) (military chaplain’s challenge of Army’s authority to relieve him from active duty pending final appellate review of court-martial conviction reviewable, but action dismissed because due process and equal protection allegations failed to state a claim under Rule 12(b)(6)). They have, denied review where plaintiffs claim is found to be weak in comparison with the preference against interference with the military. See Lindenau, 663 F.2d at 73 (none of plaintiffs constitutional challenges to facially neutral National Guard regulation “particularly strong”); Costner v. Oklahoma Army National Guard, 833 F.2d 905, 907-08 (10th Cir.1987) (no review of National Guard technician’s statutory age and sex discrimination claims where rational basis for Guard’s action “easily established”). Plaintiff bears the burden of demonstrating military officials have acted in a manner that would justify interference by a civilian court. Clark v. Widnall, 51 F.3d 917," }, { "docid": "18376220", "title": "", "text": "is asking this Court to review and reverse a number of military personnel determinations and orders. The concerns articulated in Feres and Chappell with respect to judicial intrusion into military affairs do not, of course, dissipate when a court’s focus shifts from monetary to other forms of relief. Indeed, the parties here do not agree on an appropriate standard of review, and offer authorities for standards ranging from de novo to absolute nonreviewability of the challenged orders. In particular, defendants rely on the Fifth Circuit decision in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), for the proposition that certain “military personnel decisions” are simply “not reviewable” by a federal court. The decision in Mindes v. Seaman spawned a series of cases in the Courts of Appeal involving the validity and application of a preliminary “justiciability” analysis in military matters. See, e.g., Gonzalez v. Department of the Army, 718 F.2d 926, 929-30 (9th Cir.1983); Rucker v. Secretary of the Army, 702 F.2d 966, 969-70 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562, 563-64 (8th Cir.1982), cert. denied sub nom. Nieszner v. Orr, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Dillard v. Brown, 652 F.2d 316, 322-23 (3d Cir.1981); Lindenau v. Alexander, 663 F.2d 68, 71-72 (10th Cir.1981). See generally Note, Judicial Review of Constitutional Claims Against the Military, 84 Colum.L.Rev. 387 (1984). In considering the reviewability issue in this case, it is important to recognize that the Court is not writing on a clean slate, and that a second line of cases is relevant. Plaintiff brought all of these matters, including his constitutional claims, before the Army Board for Correction of Military Records. The Court on October 13, 1983, granted plaintiff leave to amend his corn- plaint to reflect the Board’s determination. In this posture, the reviewability issue is narrowed; the question now is the effect in this proceeding of the Board’s rejection of plaintiff’s claims. Resolution of this issue requires a brief review of the functions and powers of the Board, and of the role of a court in reviewing matters previously passed upon by the" }, { "docid": "8589113", "title": "", "text": "military setting. Although the “special factors” the Court discussed in deciding not to fashion a Bivens remedy are con siderations to be balanced in the justiciability equation, the Chappell reasoning does not directly control the issue before us. The analysis this and most other circuits have endorsed for determining the reviewability of claims arising incident to military service was first stated by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971). See Pauls v. Secretary of the Air Force, 457 F.2d 294 (1st Cir.1972); see also Rucker v. Secretary of the Army, 702 F.2d 966 (11th Cir.1983); Nieszner v. Mark, 684 F.2d 562 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494 (1983); Lindenau v. Alexander, 663 F.2d 68 (10th Cir.1981); NeSmith v. Fulton, 615 F.2d 196 (5th Cir.1980); Schlanger v. United States, 586 F.2d 667 (9th Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979); Williams v. United States, 541 F.Supp. 1187 (E.D.N.C.1982); Doe v. Alexander, 510 F.Supp. 900 (D.Minn.1981); BenShalom v. Secretary of the Army, 489 F.Supp. 964 (E.D.Wis.1980); Bollen v. National Guard Bureau, 449 F.Supp. 343 (W.D.Pa.1978). But see Dillard v. Brown, 652 F.2d 316 (3d Cir.1981); Note, Judicial Review of Constitutional Claims Against the Military, 84 Colum.L.Rev. 387 (1984). The Mindes court reasoned that when a court is faced with the issue of when internal military affairs should be subjected to judicial review, What we really determine is a judicial policy akin to comity. It is a determination made up of several subjective and interrelated factors. Traditional judicial trepidation over interfering with the military establishment has been strongly manifested in an unwillingness to second-guess judgments requiring military expertise and in a reluctance to substitute court orders for discretionary military decisions. Concern has also been voiced that the courts would be inundated with servicemen’s complaints should the doors of reviewability be opened. But the greatest reluctance to accord judicial review has stemmed from the proper concern that such review might stultify the military in the performance of its vital mission. Mindes, 453 F.2d at 199. The" }, { "docid": "22853890", "title": "", "text": "claim. III. EQUITABLE ESTOPPEL A. Reviewability This circuit and others have noted that not all actions by the military are reviewable in the courts. See Note, “Judicial Review of Constitutional Claims Against the Military,” 84 Colum.L.Rev. 387, 397-403 (1984). In Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir.1971), the Fifth Circuit articulated a test for ascertaining whether a particular internal military decision should be reviewed. Mindes cautioned that a court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations and (b) exhaustion of available intraservice corrective measures. Id. If the plaintiff meets both prerequisites, the court must weigh several factors to determine whether to grant review. These factors are (1) the nature and strength of the plaintiff’s claim; (2) the potential injury to the plaintiff if review is refused; (3) the extent of interference with military functions; and (4) the extent to which military discretion or expertise is involved. Id. We have adopted in part the Mindes test for judicial reviewability of internal military affairs. See Wallace v. Chappell, 661 F.2d 729, 733 n. 4 (9th Cir.1981), rev’d on other grounds, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In Wallace, we applied the Mindes factors to constitutional claims, but declined to hold that the Mindes factors should be weighed in considering nonconstitutional claims. We stated that “[w]e express no view as to whether the Mindes test should govern federal nonconstitutional claims.” Id. at 733 n. 5. Because in this case the district court found in favor of Watkins on the nonconsti-tutional ground of equitable estoppel, we are now faced with the question whether the Mindes test is applicable to equitable estoppel. In Watkins I, a panel of this court applied the Mindes doctrine to hold, in effect, that the only issues that can be reviewed in a suit against the military are claims that the Constitution, a statute, or a regulation has been violated. See Watkins v. United" }, { "docid": "22853996", "title": "", "text": "that the Army is equitably estopped from refusing to reenlist him due to the Army’s long-standing knowledge of his homosexuality. I dissent from this holding as an unwarranted application of common law principles to matters within the military’s expertise. I The original panel in this case held that courts should not review internal military affairs absent “an allegation of the deprivation of a constitutional right or an allegation that the military has acted in violation of applicable statutes or its own regulations.” Watkins v. United States Army, 721 F.2d 687, 690 (9th Cir.1983) (“Watkins I”). The Watkins I court took this prerequisite to judicial review of internal military decisions verbatim from the test set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), for determining the justiciability of claims concerning internal military affairs. The first prong of the Mindes test requires “(a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice corrective measures.” Mindes, 453 F.2d at 201. If these prerequisites are met, a court proceeds to the second prong, which requires weighing four factors. Most circuits have adopted the Fifth Circuit’s Mindes test. Furthermore, Mindes is well-established in the Ninth Circuit. In a straightforward application of Mindes’ first prong, the Watkins I panel found a claim of equitable estoppel to be nonjusticiable because this type of common law claim is not premised on the deprivation of constitutional rights or the violation of applicable statutes or regulations. These prerequisites to judicial scrutiny of military affairs serve to advance a widely recognized goal: minimizing “judicial inquiry into, and hence intrusion upon, military matters.” United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 3063, 97 L.Ed.2d 550 (1987). While the majority acknowledges that our cases have accepted the limited nature of judicial regulation of military affairs, it fails to explore how the Mindes prerequisites further this objective. Indeed, the majority does not argue that limiting judicial review to federal constitutional, statutory, and regulatory claims is a bad" }, { "docid": "18921718", "title": "", "text": "advocated implementation of a two-part test for achieving the proper balance between these competing interests. First, a plaintiff challenging an internal military decision must allege a violation of the Constitution, a statute, or military regulation, and demonstrate exhaustion of intraservice remedies. If a plaintiff satisfies the first step, the trial court must then balance four factors to determine the claim’s suitability for judicial review: (1) the nature and strength of the plaintiff’s challenge to the military determination; (2) the potential injury to the plaintiff if review is refused; (3) the type and degree of anticipated interference with the military function; and (4) the extent to which the exercise of military expertise or discretion is involved. Nieszner, 684 F.2d 563-64 (citing Mindes, 453 F.2d at 201-02). The Ninth Circuit has also found that if the first test has been met, then it might be possible to streamline the second test. [W]e suggest that there is a simpler and perhaps sounder manner of handling this issue____ In several decisions, all in the last eight years, this Court has discussed the reviewability of military decisions. In these eases, this Court has specifically held that, while the U.S. judiciary may review armed forces’ orders of discharge, Denton v. Secretary of the Air Force, 483 F.2d 21, 24 (9th Cir.1973) cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974), federal courts should not review internal military decisions such as duty orders or duty assignments. Covington v. Anderson, 487 F.2d 660, 664-65 (9th Cir.1973); Denton, supra, at 24; Arnheiter v. Chafee, 435 F.2d 691 (9th Cir.1970) (per curiam). See also Correa v. Clayton, 563 F.2d 396, 399 (9th Cir.1977). Schlanger v. United States, 586 F.2d 667, 671 (9th Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979). But see Gonzalez v. Department of the Army, 718 F.2d 926, 929-30 (9th Cir.1983) (adopting the four-part test announced in Mindes). 3. Basis of Plaintiff s Claim Turning to the first test announced above, the Court must determine whether the plaintiff has alleged a violation of the Constitution, a statute or military" }, { "docid": "22853889", "title": "", "text": "constitutional issues raised in Watkins II. II. EXHAUSTION OF REMEDIES Before considering Watkins’ estoppel claim, we must determine the preliminary question whether Watkins has exhausted available intraservice remedies. Watkins submitted a timely application for reenlistment to his commanding officer, Captain Scott, on July 26, 1982. Following an interview with Watkins, Captain Scott denied his reenlistment request on July 28, 1982 because of Watkins’ admitted homosexuality. The Army’s position is that Watkins is ineligible for reenlistment due to a nonwaivable disqualification. Any further pursuit of intraservice remedies would therefore be fruitless. See Watkins, 551 F.Supp. at 217. As the district court stated, “This court will not require plaintiff to exhaust futile remedies.” Id. at 218. See Southeast Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir.1983) (“Exhaustion of administrative remedies is not required where administrative remedies are inadequate or not efficacious, [or] where pursuit of administrative remedies would be a futile gesture_”). Because we find that Watkins has exhausted all effective intraservice remedies, we now proceed to review the merits of his estoppel claim. III. EQUITABLE ESTOPPEL A. Reviewability This circuit and others have noted that not all actions by the military are reviewable in the courts. See Note, “Judicial Review of Constitutional Claims Against the Military,” 84 Colum.L.Rev. 387, 397-403 (1984). In Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir.1971), the Fifth Circuit articulated a test for ascertaining whether a particular internal military decision should be reviewed. Mindes cautioned that a court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations and (b) exhaustion of available intraservice corrective measures. Id. If the plaintiff meets both prerequisites, the court must weigh several factors to determine whether to grant review. These factors are (1) the nature and strength of the plaintiff’s claim; (2) the potential injury to the plaintiff if review is refused; (3) the extent of interference with military functions; and (4) the extent to which military discretion or" }, { "docid": "18921717", "title": "", "text": "its vital mission.” Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir.1971). As the Supreme Court noted in Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953), “Judges are not given the task of running the Army. * * * The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be ... scrupulous not to interfere with legitimate Army matters____” See also Chappel v. Wallace, — U.S.-, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). The policies mandating this reluctance to interfere, do not, however, require the judiciary simply to turn away and refuse to consider any and all military decisions. Obviously, allegations of the denial of important individual rights should be examined carefully. Yet, considering the potential clash between the need to- vindicate individual rights and the need to allow unfettered military decision-making, the difficult task for the Court is to determine which types of allegations justify judicial scrutiny. To facilitate this inquiry, the Eighth Circuit has advocated implementation of a two-part test for achieving the proper balance between these competing interests. First, a plaintiff challenging an internal military decision must allege a violation of the Constitution, a statute, or military regulation, and demonstrate exhaustion of intraservice remedies. If a plaintiff satisfies the first step, the trial court must then balance four factors to determine the claim’s suitability for judicial review: (1) the nature and strength of the plaintiff’s challenge to the military determination; (2) the potential injury to the plaintiff if review is refused; (3) the type and degree of anticipated interference with the military function; and (4) the extent to which the exercise of military expertise or discretion is involved. Nieszner, 684 F.2d 563-64 (citing Mindes, 453 F.2d at 201-02). The Ninth Circuit has also found that if the first test has been met, then it might be possible to streamline the second test. [W]e suggest that there is a simpler and perhaps sounder manner of handling this issue____ In several decisions, all in the last eight years, this Court" }, { "docid": "12893396", "title": "", "text": "has stemmed from the concern that such review “might stultify the military in the performance of its vital mission.” Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir.1971). In an attempt to accommodate the competing interests of non-interference with internal military decisions and the protection of individual rights, this court’s predecessor in Mindes v. Seaman, supra, established a two-step test to determine whether internal military matters may be reviewed. The first step requires the court contemplating review to determine whether the plaintiff has alleged that the military acted contrary to the Constitution, applicable statutes, or its own regulations and whether the plaintiff has exhausted his administrative remedies. Id. at 201. Once that determination is made, the court must then balance the substance of the allegations against the policy reasons that militate against review based on four factors: 1. the nature and strength of the plaintiff’s challenge to the military function; and 2. The potential injury to the plaintiff if review were denied; 3. the type and degree of anticipated interference with the military function; and 4. the extent to which the exercise of military expertise or discretion is involved. Id. at 201-02. See NeSmith v. Fulton, 615 F.2d at 201; Johnson v. Reed, 609 F.2d 784, 788-89 (5th Cir.1980); West v. Brown, 558 F.2d 757, 759 (5th Cir.1977), cert. denied 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978). It is clear that the first prong of this test has been met. Rucker has exhausted his administrative remedies by petitioning to the ABCMR requesting the relief sought in this action and receiving an adverse determination. Rucker has alleged that the Army has violated its regulations by not affording him consulting counsel, a medical status evaluation, and an opportunity to submit statements at the outset of his elimination proceedings. Rucker has also challenged these proceedings on procedural due process grounds. It has been intimated that such allegations obviate the need for weighing the four factors of the second prong of the test. See, e.g., Woodard v. Marsh, 658 F.2d at 992 (“It is well established that, despite Mindes'doctrine of ‘nonreviewability,’" }, { "docid": "12626332", "title": "", "text": "F.3d at 1130 (citing 420 U.S. 738, 740, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975)). In Schlesinger, the Court held that Article III courts had jurisdiction to entertain an Army captain’s suit seeking an injunction against pending court martial proceedings based on conduct he claimed was non “service-related” and therefore outside the court martial jurisdiction. Id. Plaintiffs in this case argue that district courts called upon to review military decisions must employ the test adopted in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), affirmed on appeal after remand, 501 F.2d 175 (5th Cir.1974). See Pis.’ Mot. at 5; Pis.’ Reply at 7. The Mindes court held that a court should only review internal military affairs if there is an allegation that a constitutional right has been deprived or an allegation that the military has acted in violation of applicable statutes or regulations. Mindes, 453 F.2d at 201. The Fifth Circuit determined that there are four factors a court must analyze: (1) the nature and strength of the plaintiffs challenge to the military determination; (2) the potential injury to the plaintiff if review is refused; (3) the type and degree of anticipated interference with the military function; (4) the extent to which the exercise of military expertise or discretion is involved (courts should defer to superior knowledge and experience of professionals in matters such as military personnel decisions or other areas that relate to specific military functions.) Id. While plaintiffs concede that the D.C. Circuit has not expressly adopted the Mindes test, they point out that it has not rejected the test in circumstances such as those presented in the case at bar. The case of Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1512 (D.C.Cir.1989), however, suggests to this Court that the D.C. Circuit Court may not look particularly favorably upon the Mindes analysis. In the Kreis case, an Air Force major brought suit seeking retroactive promotion or, in the alternative, correction of military records. The Court of Appeals held that the major’s claim for retroactive promotion was a nonjusticiable military personnel decision and that his alternative" }, { "docid": "14447102", "title": "", "text": "court should review a serviceman’s allegation of a deprivation of constitutional rights by the military. See 661 F.2d at 732-34. The Mindes-Wallace analysis requires two separate multi-factored inquiries. First, an internal military decision is unreviewable unless the plaintiff alleges (a) a violation of the Constitution, a federal statute, or military regulations; and (b) exhaustion of available intraservice remedies. Wallace, 661 F.2d at 732; Mindes, 453 F.2d at 201. The Army essentially concedes that appellant has met these initial requirements. It argues, however, that review of appellant’s challenge to the Army’s promotion decisions in this case is precluded under the second part of the Mindes-Wallace analysis. This second phase consists of a weighing of four factors to determine whether review should be granted: (1) The nature and strength of the plaintiffs claim .... [Constitutional claims ordinarily carry greater weight than those resting on a statutory or regulatory base, but ... within the class of constitutional claims, the nature and strength of the claim can vary widely. (2) The potential injury to the plaintiff if review is refused. (3) The extent of interference with military functions .... [interference per se should not preclude review because some degree of interference will always exist. (4) The extent to which military discretion or expertise is involved. Wallace, 661 F.2d at 733; see also Mindes, 453 F.2d at 201-02. After evaluating each of these factors, we conclude that the district court’s decision not to hear appellant’s claim under section 1981 should be affirmed. Even though appellant alleges “recognized” constitutional claims of the type that may be reviewed, see Wallace, 661 F.2d at 734, the other Mindes-Wallace factors strongly militate against reviewability. The second factor weighs against review, because the potential injury to appellant if review is denied is not substantial. He has already been reinstated by the Army with retroactive promotion to the rank of Major. He now seeks an earlier retroactive promotion date and guaranteed promotions in the future. Even if upon review these claims would have been upheld, the most that appellant would have gained is an earlier retroactive promotion date. As a result" }, { "docid": "13202456", "title": "", "text": "the exercise of federal question jurisdiction. DISCUSSION Defendants urge the court to reconsider (1) the appropriateness of interfering with the military establishment, (2) the finding of irreparable harm, and (3) the conclusion that exhaustion of administrative remedies would be futile. Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), is the leading case which outlines when military internal affairs should be subjected to judicial review. The test is as follows: [A] court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice measures. 453 F.2d at 201; see also Williams v. Wilson, 762 F.2d 357 (4th Cir.1985) (adopting Mindes test). As the court noted in its order granting preliminary injunctive relief, application of this test demands that the court balance four policy considerations in determining the justiciability of a claim: (1) The nature and strength of the plaintiff’s challenge to the military termination; (2) The potential injury to the plaintiff if review is refused; (3) The type and degree of anticipated interference with the military function; and (4) The extent to which the exercise of military expertise or discretion is involved. Williams, 762 F.2d at 359, quoting in part, Mindes, 453 F.2d at 201. The court adheres to its earlier conclusion that judicial review is warranted in this case. It will not unduly interfere in military affairs, and resolution of the plaintiffs equal protection challenge does not require military discretion and expertise. Defendants argue that the damage to plaintiffs reputation is not sufficient to support the irreparable harm requirement. They rely on Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). Sampson held that where “the Government has traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs’ ... the granting of preliminary injunctive relief” is limited to where there is “a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability" }, { "docid": "12893395", "title": "", "text": "Woodard v. Marsh, 658 F.2d 989, 992 (5th Cir.1981). II. DISCUSSION: A. Reviewability. Rucker contends the procedures employed to eliminate him from the military were constitutionally defective and in violation of applicable Army regulations. The Army argues, however, that Rucker’s claim is not subject to judicial review because Rucker’s separation from the Army is a nonreviewable military decision. The Army argues that its decision to void Rucker’s enlistment for fraudulent entry rather than issue him a discharge based upon his civil conviction and confinement is a discretionary internal matter and therefore not subject to judicial review. We disagree with the Army’s characterization of Rucker’s complaint and conclude a portion of Rucker’s claim is reviewable. Rucker’s challenge to the termination of his enlistment “implicates judicial concern over inappropriate intrusion” into military matters. NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir.1980). Such concern has led courts to decline review of military matters although the courts generally have jurisdiction of matters concerning military personnel decisions. See, e.g., Woodard v. Marsh, 658 F.2d at 992. This “judicial trepidation” has stemmed from the concern that such review “might stultify the military in the performance of its vital mission.” Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir.1971). In an attempt to accommodate the competing interests of non-interference with internal military decisions and the protection of individual rights, this court’s predecessor in Mindes v. Seaman, supra, established a two-step test to determine whether internal military matters may be reviewed. The first step requires the court contemplating review to determine whether the plaintiff has alleged that the military acted contrary to the Constitution, applicable statutes, or its own regulations and whether the plaintiff has exhausted his administrative remedies. Id. at 201. Once that determination is made, the court must then balance the substance of the allegations against the policy reasons that militate against review based on four factors: 1. the nature and strength of the plaintiff’s challenge to the military function; and 2. The potential injury to the plaintiff if review were denied; 3. the type and degree of anticipated interference with the military function; and" }, { "docid": "22919651", "title": "", "text": "AR 635-212. Notwithstanding the importance of Hodges’ challenge to the action taken below, our attention to the merits of appellant’s position is deflected at the threshold by a jurisdictional problem not detected by either the parties or the district court. Although federal courts are not totally barred from barracks rooms and billets, our access is restricted. Writing for this Court in Mindes v. Seaman, 5 Cir. 1971, 453 F.2d 197, 201, Judge Clark framed a general statement of our authority: a court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a con stitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (B) exhaustion of available intraservice corrective measures. The first portion of this formula may often be the more difficult to apply, for not all allegations technically within its perimeters are reviewable. Thus the trial court must “examine the substance of [the] allegation in light of the policy reasons behind nonreview of military matters,” balancing, inter alia, the nature and strength of the challenge to the military determination, the potential injury to the plaintiff if review is refused, the type and degree of anticipated interference with the military function, and the extent to which the exercise of military expertise or discretion is involved. Id. At the same time, concentration on the balancing act required to measure the sufficiency of the allegations should not obscure the importance of the second portion of the Mindes formula — the exhaustion requirement. Beginning with McCurdy v. Zuckert, 5 Cir. 1966, 359 F.2d 491, cert. denied, 1966, 385 U.S. 903, 87 S.Ct. 212, 17 L.Ed.2d 133, this Court has firmly adhered to the rule that a plaintiff challenging an administrative military discharge will find the doors of the federal courthouse closed pending exhaustion of available administrative remedies. Accord, Davis v. Secretary of the Army, 5 Cir. 1971, 440 F.2d 817; Stanford v. United States, 5 Cir. 1969, 413 F.2d 1048; Tuggle v. Brown, 5 Cir., 362 F.2d 801, cert. denied, 1966, 385 U.S. 941, 87" }, { "docid": "14447101", "title": "", "text": "their superi- or officers in order for us to determine whether the plaintiffs’ claims for relief might be cognizable under 42 U.S.C. § 1985(3). See id. at 2368 n. 3. Implicit in the court’s order of remand is the recognition that, in some situations at least, uniformed members of the Armed Services may assert that their constitutional and statutory rights have been violated by their superiors. See id. at 2368. We need not decide in this case, however, whether appellant Gonzalez’s claims against the Army of race discrimination in violation of section 1981 are cognizable because, even if we assume that he may assert his claims of discrimination under section 1981, the particular claims that appellant makes are non-reviewable. See Wallace v. Chappell, 661 F.2d 729, 732-33 (9th Cir.1981), rev’d on other grounds, - U.S. -, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In Wallace v. Chappell, we adopted, with some modification, the approach outlined by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), to the question of whether a civilian court should review a serviceman’s allegation of a deprivation of constitutional rights by the military. See 661 F.2d at 732-34. The Mindes-Wallace analysis requires two separate multi-factored inquiries. First, an internal military decision is unreviewable unless the plaintiff alleges (a) a violation of the Constitution, a federal statute, or military regulations; and (b) exhaustion of available intraservice remedies. Wallace, 661 F.2d at 732; Mindes, 453 F.2d at 201. The Army essentially concedes that appellant has met these initial requirements. It argues, however, that review of appellant’s challenge to the Army’s promotion decisions in this case is precluded under the second part of the Mindes-Wallace analysis. This second phase consists of a weighing of four factors to determine whether review should be granted: (1) The nature and strength of the plaintiffs claim .... [Constitutional claims ordinarily carry greater weight than those resting on a statutory or regulatory base, but ... within the class of constitutional claims, the nature and strength of the claim can vary widely. (2) The potential injury to the plaintiff if review is" }, { "docid": "924245", "title": "", "text": "Circuit, the government, at least to this extent, has receded from its virtually absolutist position. The Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), formulated a four-prong test to determine the justiciability of military related challenges. Air Force Captain Mindes claimed that he had received an erroneous and adverse Officer Effectiveness Report. This report resulted in Mindes’s separation from active duty and assignment to reserve status, and he sought to have the report voided. After failing to obtain relief through intraservice procedural reviews, Mindes filed a complaint in district court seeking declaratory and injunc-tive relief. The district court dismissed the complaint for lack of subject matter jurisdiction. In reversing the district court, the Fifth Circuit first held that there was subject matter jurisdiction. Next, the court noted that military affairs were not automatically non-reviewable. Before a court could review internal military affairs, there had to be “(a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice corrective measures.” Id. at 201. Both Mindes and Dillard alleged constitutional deprivations. Mindes had exhausted all military review. In Dillard’s case the government has not claimed that Dillard failed to exhaust any military remedies that may have been available. Accordingly, in analyzing the Mindes standard we have no occasion to address this aspect as it pertains to Dillard. The alleged constitutional violations under Mindes were examined by that court in light of four factors: 1. The nature and strength of the plaintiff’s challenge to the military determination. Constitutional claims, normally more important than those having only a statutory or regulatory base, are themselves unequal in the whole scale of values — compare haircut regulation questions to those arising in court-martial situations which raise issues of personal liberty. An obviously tenuous claim of any sort must be weighted in favor of declining review. 2. The potential injury to the plaintiff if review is refused. 3. The type and degree of anticipated interference with the military function. Interference per" }, { "docid": "4089434", "title": "", "text": "Seaman, 453 F.2d 197 (5th Cir.1971), where it explained: Traditional trepidation over interfering with the military establishment has been strongly manifested in an unwillingness to second-guess judgments requiring military expertise and in a reluctance to substitute court orders for discretionary military decisions. Concern has also been voiced that the courts would be inundated with servicemen’s complaints should the doors of reviewability be opened. But the greater reluctance to accord judicial review has stemmed from the proper concern that such review might stultify the military in the performance of its vital mission. Id. at 199. In Mindes, the Fifth Circuit set out a framework for determining whether a court should review a military decision. First, there must be an “allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations.” Id. at 201. Second, the plaintiff must have exhausted the “available intraservice corrective measures.” Id. If these two threshold requirements are met, then the court should use a four-part test balancing: “1. The nature and strength of the plaintiff’s challenge to the military determination. ... 2. The potential injury to the plaintiff if review is refused. 3. The type and degree of anticipated interference with the military function. Interference per se is insufficient since there will always be some interference when review is granted, but if the interference would be such as to seriously impede the military in the performance of vital duties, it militates strongly against relief. 4. The extent to which the exercise of military expertise or discretion is involved. Courts should defer to the superior knowledge and expertise of professionals in matters such as promotions or orders directly related to specific military functions.” Id. at 201-02. This court adopted the Mindes framework in Williams v. Wilson, 762 F.2d 357 (4th Cir.1985). Therefore, we must analyze Guerra’s chances of success on his claims using the Mindes framework. Guerra raises Due Process and Equal Protection challenges to the procedures under which the Army sought to discharge him. Therefore, Guerra meets the first threshold requirement of Mindes." } ]

[ { "docid": "22657267", "title": "", "text": "a substantial showing of the denial of a constitutional right.” (Emphasis added.) A “substantial showing” does not entitle an applicant to a COA; it is a necessary and not a sufficient condition. Nothing in the text of § 2253(c)(2) prohibits a circuit justice or judge from imposing additional requirements, and one such additional requirement has been approved by this Court. See Slack v. McDaniel, 529 U. S. 473, 484 (2000) (holding that a habeas petitioner seeking to appeal a district court’s denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling). The Court today imposes another additional requirement: A circuit justice or judge must deny a COA, even when the habeas petitioner has made a substantial showing that his constitutional rights were violated, if all reasonable jurists would conclude that a substantive provision of the federal habeas statute bars relief. Ante, at 336. To give an example, suppose a state prisoner presents a constitutional claim that reasonable jurists might find debatable, but is unable to find any “clearly established” Supreme Court precedent in support of that claim (which was previously rejected on the merits in state-court proceedings). Under the Court’s view, a COA must be denied, even if the habeas petitioner satisfies the “substantial showing of the denial of a constitutional right” requirement of § 2263(c)(2), because all reasonable jurists would agree that habeas relief is impossible to obtain under § 2254(d). This approach is consonant with Slack, in accord with the COA’s purpose of preventing meritless ha-beas appeals, and compatible with the text of § 2253(c), which does not make the “substantial showing of the denial of a constitutional right” a sufficient condition for a COA. II In applying the Court’s COA standard to petitioner’s case, we must ask whether petitioner has made a substantial showing of a Batson violation and also whether reasonable jurists could debate petitioner’s ability to obtain habeas relief in light of" } ]

[ { "docid": "23518656", "title": "", "text": "addressed Mr. Adams’ contention that pursuant to Houston v. Lack, his second state petition was “filed” when he placed the petition in the mail. Adopting this argument would toll the federal statute of limitations long enough to make Mr. Adams’ federal habeas petition timely. We granted a certificate of appealability, vacated the district court’s order, and remanded for a determination of this issue. On remand, the district court held Houston v. Lack did not apply in this case, and again found Mr. Adams’ federal petition untimely. We granted a certificate of ap-pealability on this issue, and appointed counsel for Mr. Adams for the purposes of this appeal. DISCUSSION Because the question presented here is a legal one, our review is de novo. See Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 944, 145 L.Ed.2d 820 (2000). As an initial matter, we must determine if we have jurisdiction over this appeal. Appellate review of the dismissal of a habeas petition is controlled by 28 U.S.C. § 2253, which requires the issuance of a certificate of appealability before an appeal can proceed in our court. See 28 U.S.C. § 2253(c)(1)(A). “A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As mentioned earlier, we granted a certificate of appealability on the issue of the timeliness of Mr. Adams’ federal petition. However, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appeal-ability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Therefore, the determination of whether a certificate of appealability should issue in this case must have “two components, one directed at" }, { "docid": "10631315", "title": "", "text": "counsel. . Section § 848(q)(4)(B) provides that, \"[i]n any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation ... shall be entitled to the appointment of one or more attorneys....” 21 U.S.C. § 848(q)(4)(B), repealed by Terrorist Death Penalty Enhancement Act of 2005, Pub.L. No. 109-177, tit. II, subtit. B, § 222(c), 120 Stat. 192, 232 (2006). . Judge Greenberg dissented, stating that he would have dismissed the appeal. . Judge Greenberg again dissented from the denial of panel rehearing. Michael v. Horn, 414 F.3d 456, 2005 WL 1606069, at *1-8 (3d Cir. July 7, 2005) (Greenberg, J., dissenting). . Judge Greenberg concurred to emphasize that he viewed whatever had happened in the District Court respecting Michael's vacillations as \"beyond the scope of our certificate of appealability.” Michael, 144 Fed.Appx. at 264 (Greenberg, J., concurring). Judge Nygaard dissented because he believed that the June 2 order was correct and, to the extent it was ambiguous, could be supplemented. Id. at 264-65 (Nygaard, J., dissenting). . A COA may issue only upon \"a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a \"district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Where, as here, the District Court has rejected the claims on procedural grounds, the prisoner must establish “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. . It is also well settled that a defendant has a right to waive representation. See Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct." }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "18061434", "title": "", "text": "§ 2254 habeas corpus petition, however, the Antiterrorism and Effective Death Penalty Act of 1996 (\"AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, \"governs the conditions of [Jones’s] appeal, and so he was required to seek a COA to obtain appellate review of the dismissal of his habeas petition.” Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We treat Jones's notice of appeal, filed on September 24, 2013, as an application for a COA. See Fed. R.App. P. 22(b); Slack, 529 U.S. at 483, 120 S.Ct. 1595. When the district court denies a habeas corpus petition on procedural grounds and fails to reach the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows \"that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Reviewing Jones's motion, we conclude that he has satisfied AEDPA's requirements for a COA by making “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and by showing that jurists of reason could debate whether the district court properly dismissed Jones’s Rule 60(b) motion as a disguised (and unauthorized) second or successive 28 U.S.C. § 2254 habeas corpus petition. We grant Jones a COA, though this of course is not the same as authorizing him to file a second or successive 28 U.S.C. § 2254 habeas corpus petition based on the standard in 28 U.S.C. § 2244(b). . An Arizona execution warrant expires 24 hours from the date it sets for the execution. Ariz. R.Crim. P. 31.17(c)(3). Jones’s warrant sets his execution for October 23, 2013, and therefore expires the next day. Because it would take far longer than that to reopen and adjudicate the claims Jones now wishes to pursue, the State would be forced to obtain a new warrant if Jones is allowed to proceed but then loses. Thus, the likely need to" }, { "docid": "23625770", "title": "", "text": "F.Supp.2d 1087 (C.D.Cal.1998). STANDARDS OF REVIEW A. General Standards We review de novo a district court’s denial of a § 2255 motion. United States v. McMullen, 98 F.3d 1155, 1156 (9th Cir.1996). We review for clear error a district court’s factual findings that underlie the disposition of a § 2255 motion. Sanchez v. United States, 50 F.3d 1448, 1452 (9th Cir.1995). B. Standard for Issuing a COA A COA may issue only upon the “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.... When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The Supreme Court recently elaborated on what is required to make such a showing: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039," }, { "docid": "23657085", "title": "", "text": "in both habeas corpus proceedings and other contexts”). We begin our discussion by setting forth the limited circumstance under which a court may issue a COA. The right to appeal is governed by the COA requirements set forth in 28 U.S.C. § 2253(c): (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). Under this limited provision, if a district court denies a habeas petition on procedural grounds without reaching the petitioner’s underlying constitutional claims, a COA should issue only if the petitioner shows “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1601, 146 L.Ed.2d 542 (2000). “[B]oth showings [must] be made before the court of appeals may entertain the appeal.” Id. at 485, 120 S.Ct. at 1604. If the procedural bar is obvious and the district court correctly invoked it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at 484, 120 S.Ct. at 1604. The court may first resolve the issue whose answer is more apparent from the record and the arguments. Id. at 485, 120 S.Ct. at 1604. “The recognition that the court will not pass upon a constitutional question" }, { "docid": "22217607", "title": "", "text": "psychiatric reports, constituted evidence with sufficient reliability to support the Board’s denial of parole. Therefore we cannot conclude that the state court’s decision upholding this denial was “contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). II. Rosas also contends that he is entitled to habeas relief because his guilty plea was not knowing and voluntary, thereby denying him due process and effective assistance of counsel at sentencing. The district court dismissed this claim as time-barred and later denied Rosas’s request for a certificate of appealability on the issue. Unlike Rosas’s claim for denial of parole, the challenge to his underlying conviction “arises out of process issued by a State court,” and therefore Rosas must obtain a certificate of appealability in order for us to entertain his appeal. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability should issue only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where, as here, the district court dismisses the petition on procedural grounds, a certificate of appealability should issue only if the petitioner can show: (1) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”; and (2) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Rosas has failed to meet this standard with respect to the district court’s resolution of the statute of limitations issue. The statute of limitations on habeas corpus petitions filed by state prisoners in federal court is one year. 28 U.S.C. § 2244(d)(1). State prisoners like Rosas, whose convictions became final prior to the enactment of this one-year statute of limitations, had until April 24,1997 to file their petitions. Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001). Rosas did not file a petition challenging his sentence until 2000. Moreover, nothing in the record suggests" }, { "docid": "7599260", "title": "", "text": "we held that these claims were not procedurally defaulted. While we are generally not in the business of reversing certificates of appealability, see Porterfield v. Bell, 258 F.3d 484, 485 (6th Cir.2001), it bears repeating what is required before one can be issued. To obtain a COA on an issue, a petitioner must show that “reasonable jurists would find the district court’s assessment of the constitutional claim[ ] debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This inquiry is straightforward when a district court denies a constitutional claim on the merits. But where the district court denies an issue on procedural grounds without evaluating the merits of the underlying constitutional claim, courts should grant a COA only if two requirements are satisfied. See Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). First, the court must determine that reasonable jurists would find the district court’s procedural assessment debatable or wrong. Id. at 484, 120 S.Ct. 1595. Second, the court must determine that reasonable jurists would find it debatable or obvious that the petitioner states a valid underlying constitutional claim on the merits. Id. If the petitioner cannot make both of these showings, assessed in whatever order, then a court should not grant a COA on the procedural issue. Id. This framework faithfully applies the text of 28 U.S.C. § 2253 — requiring “a substantial showing of the denial of a constitutional right” before courts may grant a COA — while not making procedural rulings unreviewable. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. By contrast, it does violence to the text of § 2253-a jurisdictional statute, see Hill v. Mitchell, 400 F.3d 308, 329 (6th Cir.2005) — when courts grant COAs without assessing the debatability of the underlying merits. IV. For these reasons, we affirm." }, { "docid": "20905966", "title": "", "text": "standard that should be applied to the COA requirement under the current section 2253 and its requirement that a COA only issue upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts of appeals that have articulated standards for issuance of a COA in this context have generally drawn from the Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). United States v. Arrington, 763 F.3d 17, 23 (D.C.Cir.2014); Spitznas, 464 F.3d at 1225; Reid, 369 F.3d at 371; Gonzalez, 366 F.3d at 1267. In Slack, the Court determined the standard governing issuance of a COA when the district court denies a habeas petition on procedural grounds. The Court articulated a two part standard: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. The Court held that this test “gives meaning to Congress’s requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the ‘substantial showing’ standard provided in Barefoot ... and adopted by Congress in AEDPA.” Id. The substantial showing standard is met when “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Id. at 484, 120 S.Ct. 1595 (citation and internal quotation marks omitted). Similarly, we hold that a COA should only issue for the appeal arising from the denial of a Rule 60(b) motion in a section 2255 proceeding if the movant shows that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion and" }, { "docid": "23442042", "title": "", "text": "court’s decision to deny his “Motion for Leave to File a Second Amended Petition for Writ of Habeas Corpus.” As explained below, we treat Murray’s uncertified claim as a motion to expand the certificate of appealability (“COA”) that we previously granted. Under Federal Rule of Appellate Procedure 22(b)(2), a notice of appeal constitutes an application for a COA. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Thus, where “a motions panel grants a COA in part and denies a COA in part,” “[uncerti-fied issues raised and designated in [the manner prescribed by Ninth Circuit Rule 22-1] will be construed as a motion to expand the COA and will be addressed by [us] to such extent as [we] deem[ ] appropriate.” 9th Cir. R. 22-1(d)-(e). A COA may issue in federal habe-as review of state proceedings “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Wilson v. Belleque, 554 F.3d 816, 825-26 (9th Cir.2009). This is not an exacting standard. Id. at 826. We will “not decline the application for a COA merely because [we] believe[ ] the applicant will not [ultimately] demonstrate an entitlement to relief.” Miller-El, 537 U.S. at 337, 123 S.Ct. 1029. Rather, we will issue a COA “if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Wilson, 554 F.3d at 826. If, however, the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when ... jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not[, however,] conclude" }, { "docid": "18128604", "title": "", "text": "and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996) (quoting 28 U.S.C. § 2255). The Court finds the record in this case conclusively shows that the defendant is not entitled to relief, and thus, will dismiss the motion without a hearing. III. CERTIFICATE OF APPEALA-BILITY A petitioner must obtain a certifícate of appealability (“COA”) before pursuing any appeal from a final order in a § 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a § 2255 motion is based on the merits of the claims in the motion, a district court should issue a certificate of appealability only when the appeal presents a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, the Supreme Court stated that when a district court rejects the constitutional claims on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Because the defendant has not made a substantial showing of the denial of a constitutional right, and because the Court finds that reasonable jurists would not find the Court’s assessments of his constitutional claims debatable or wrong, the Court declines to issue a certificate of appealability. IV. CONCLUSION Because the defendant was lawfully arrested on May 12, 2008, the Court concludes that Ms. Shaner’s failure to file a motion to quash the indictment or a motion to suppress evidence resulted in no prejudice to defendant’s case. Thus, defendant’s Motion must be denied. A separate Order consistent with this Memorandum Opinion shall issue this date. . The government inconsistently identified the FBI Agent who spoke with the tipster on May 12, 2008. Compare Opp'n 16 (\"citizen contacted Agent DeJesus\"), with id. at 25 (\"citizen contacted that FBI agent”), and DeJesus Aff. ¶ 13, ECF No. 1-1 (\"citizen contacted the FBI agent”). Special Agent DeJesus testified that his affidavit was true and accurate" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "21868709", "title": "", "text": "that he had motioned to his pocket when he was in the store, the jury could also reasonably infer that the gun was physically available and accessible to him during the in-store robbery. In short, viewing all the testimony in the light most favorable to the prosecution, the court concludes that the Delaware Supreme Court did not unreasonably apply Jackson in finding sufficient evidence to sustain petitioner’s weapons conviction. Thus, this claim does not warrant habeas relief under § 2254(d)(1). Y. CERTIFICATE OF APPEALABILITY Finally, the court must decide whether to issue a certificate of appealability. See Third Circuit Local Appellate Rule 22.2. The court may issue a certificate of appeal-ability only when a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the denial of a constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. For the reasons stated above, the court concludes that petitioner is not entitled to federal habeas relief for any of his claims. Reasonable jurists would not find these conclusions unreasonable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued. VI. CONCLUSION For the foregoing reasons, petitioner’s application for habeas relief filed pursuant to 28 U.S.C. § 2254 will be denied. An appropriate order will be entered. ORDER For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that: 1. Petitioner Claude A. Jones’ application for a writ of habeas corpus pursuant to 28" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "11165303", "title": "", "text": "court’s decision without a COA. Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029; Lockett, 711 F.3d at 1249. The district court dismissed each of these claims on procedural grounds and refused to grant a COA for any of them. Although Mr. Frost does not explicitly seek a COA, we construe his filing of a notice of appeal as a request for a COA. See Fed. R.App. P. 22(b)(2) (“If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.”); see also United States v. Gordon, 172 F.3d 753, 753-54 (10th Cir.1999) (citing Fed. R.App. P. 22(b)(2)). 1. Standard for Granting COA Under AEDPA, we may not issue a COA unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253; see also Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). When a district court dismisses a petition on procedural grounds “without reaching the prisoner’s underlying constitutional claim,” a COA cannot issue unless the petitioner shows both (1) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and (2) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; accord Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir.2007). Rather than addressing these two threshold re quirements in order, we may “resolve the issue whose answer is more apparent from the record and arguments.” Slack, 529 U.S. at 485, 120 S.Ct. 1595. 2. Legal Background a. Exhaustion and anticipatory procedural bar A federal court cannot grant a state prisoner’s habeas petition unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1). Relevant here, a state prisoner must give state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct." }, { "docid": "22976813", "title": "", "text": "and entered a final judgment, denying Dowthitt habeas relief on all claims, dismissing his case with prejudice, and denying Dowthitt’s request for a COA. After .the district court denied his Rule 59(e) motion, Dowthitt timely appealed to this court, requesting a COA and reversal of the district court’s judgment denying habeas relief. II. DISCUSSION Because Dowthitt’s petition for federal habeas relief was filed after April 24, 1997, this appeal is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (“Petitioners whose convictions became final before the effective date of the AEDPA were given a grace period of one year to file their federal habeas petitions, rendering them timely if filed by April 24, 1997.”). Under AED-PA, a petitioner must first obtain a COA in order for an appellate court to review a district court’s denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A). 28 U.S.C. § 2253(c)(2) mandates that a COA will not issue unless the petitioner makes “a substantial showing of the denial of a constitutional right.” This standard “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (internal quotations and citations omitted); see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.2000). The formulation of the COA test is dependent upon whether the district court dismisses the petitioner’s claim on constitutional or procedural grounds. If the district court rejects the constitutional claims on the merits, the petitioner “must demonstrate that reasonable jurists' would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 120 S.Ct. at 1604. On the other hand, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason" }, { "docid": "2875794", "title": "", "text": "action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable" }, { "docid": "15137365", "title": "", "text": "unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless. D. Certificate of Appealability An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. This issue was central to petitioner’s trial and this Court’s resolution of the issue is central to this habeas proceeding. This claim not only is fact-intensive but also implicates numerous fundamental rights. That being so, the Court is more than satisfied that reasonable jurists could find its" } ]

[ { "docid": "22217236", "title": "", "text": "exhibits. The defendant demurred to the bill, setting up fifteen grounds in support of the demurrer; and on January 6, 1891, the court below sustained the demurrer, and entered a decree dismissing the bill. An appeal from that decree brings the case here. The first and main ground of the demurrer in this case is, that the facts stated in the complaint show that the relief claimed by the complainants is barred by' the judgment or decree of a court of competent jurisdiction, rendered in proceedings regular on their face,- and which have not been attacked by any proceeding in that court, or in any áppellate court. The bill alleged that the court which rendered ithat judgment was without jurisdiction; that its proceedings in the matter did not conform to the statute under the authority bf which it assumed to act; that the judgment itself was obtained, by a fraud upon the court; and that necessarily the pretended succession sale had in pursuance thereof, from which the appellee derived title to the lands with respect to which he committed the wrongs complained of, was illegal and void as to complainants, who, as heirs of Robert M. Simmons, deceased? are the equitable owners of said property. The pleadings, therefore, at the outset, present to tts these two questions: (1) The validity of the judgment of the parish court of Washington parish ordering the succession sale of the unlocated land claim of Robert M. Simmons, deceased, and the legality of the sale thereunder, irrespective of any question of fraud. (2) As to the fraud by which it is alleged the judgment in question was procured. It is the settled doctrine of this court that the constitutional provision that full faith and credit shall be given in each State to the judicial proceedings of other States, does not preclude inquiry into the jurisdiction of the court in which a judgment is rendered over the subject matter or the parties affected by it, nor into the facts necessary to give such jurisdiction. Thompson v. Whitman, 18 Wall. 457; Cole v. Cunningham, 133 U. S." } ]

[ { "docid": "21349354", "title": "", "text": "filed its intervening petition alleging that the remainder interests of appellees herein were not protected by the decree of May 5, 1927, hereinabove referred to; that said appellees by divers acts and pleadings filed in said cause had extinguished, transferred, and assigned their remainder interests to the life tenant, Sophie Franz; that that portion of the Burroughs Adding Machine Company stock, claimed by appellees herein, was subject to inheritance taxes as part of the estate of Sophie Franz, and had-not been inventoried in her estate; and praying that a portion of this stock be transferred from the trustees to the District Court registry to secure the state inheritance taxes thereon, and be held until it might be determined in the probate court of the city of St. Louis whether such stock should have been inventoried, therein as part of the Sophie Franz estate. Thereupon, representatives of five of the six and two-thirds interests, appellees herein, filed in the District Court their ancillary and supplemental bill of complaint for an injunction, directed at the state of Missouri, certain of its officers, and attorneys for the state in connection with said inheritance taxes claimed in the Sophie Franz estate. This bill alleged that the state and its representatives had caused to be served on the executor of that estate a citation from the probate court intended to have inventoried, as a part of such estate, the Burroughs Stock in the trust estate belonging to them as vested remainders under the will of Ehrhardt D. Franz; that such action was contrary to the decree of the trial District Court which had adjudged complainants entitled to receive this stock from the trustees; that respondents would attempt to obtain orders in the probate court which would be “adverse and prejudicial to the rights and interests of the above named plaintiffs in this cause in this court, •and orders, decrees and judgments which will prejudicially affect, impair and defeat the jurisdiction of this honorable court and the decree rendered by it in the premises.” The prayer for restraint was from “directly or indirectly prosecuting further the" }, { "docid": "22217263", "title": "", "text": "against the appellants. That was a bill in equity brought by the alleged heirs-at-law of Broderick to set aside and annul the probate of his will in the probate court of California, and to recover the property belonging to his estate, or to have the purchasers at the executor’s sale thereof, and those deriving title from them, charged as trustees for the benefit of complainants. The bill alleged that the will was forged; that the grant of letters testamentary-and the orders for the sale of the property were obtained by fraud,' all of which proceedings, as well as the death of the decedent, were unknown to the complainants until within three years before the filing of the bill. A demurrer to the bill was overruled and the case was appealed to this court. It was held, Mr. Justice Bradley delivering the opinion, that a court of equity will not entertain jurisdiction to set aside the probate of a will, on the ground of fraud, mistake or forgery, this being within the exclusive jurisdiction of the probate court ; and that it will not give relief by charging the purchasers at the executor’s sale, under the orders of the probate court, and those deriving title from them, as trustees, in favor of a third person, alleged to be defrauded by the forged or fraudulent will, where the court of probate could afford relief, in whole or in part. With the single exception that that case was brought to set aside the probate of a will, and this was brought to set aside the granting of letters of administration upon a succession, the two cases are as much' alike as two photographs of the same person, the lineaments of the alleged fraud being more distinctly brought out in the bill in the case of Broderick’s Will, than in the bill in this case. Both were bills in equity, brought by the alleged heirs-at-law of a decedent, to set aside and . annul a decree of a court of probate, and all the subsequent proceedings, including the order of sale and the sale" }, { "docid": "12580995", "title": "", "text": "court. This suit to impeach the decree of May 4, 1888, and to prevent the consummation of the alleged plan of reorganization, was a separate and distinct case, so far as this inquiry is- concerned, from a suit to foreclose the mortgages on the railroad property ; and no question of jurisdiction over the foreclosure suit or the rendition of the decree passed therein can be availed of to sustain the present appeal from the decree in this proceeding.” Carey v. Houston & Texas Central Railway. 150 U. S. 170, 180. We are quite content with the conclusion there reached, for this suit is in itself unquestionably a distinct suit in the sense in which those words were used in disposing of the former appeal; and in respect of it the jurisdiction of the Circuit Court was not in issue, nor was any question of juris diction certified. Carey and his cocomplainants did not intervene in consolidated cause No. 198, and seek to have the question of the jurisdiction of the Circuit Court therein certified to this court and appeal directly therefrom, nor did they file a bill of review for error of law apparent in that the Circuit Court took jurisdiction as a court of the United States. The gravamen of the bill they did file was fraud and collusion, and the allegations of want of jurisdiction relate to prematurity in the attempt to foreclose or to other matters not bearing on the jurisdiction of the Federal courts as such. And the prayer was that the decree be vacated and adjudged fraudulent, collusive, illegal, and void; that complainants might be permitted to intervene and become parties defendant ; that the sale of the railroad and lands of the company under the decree be vacated and set.aside; “and the said railway and lands be restored to the possession of the receivers appointed by this court or such other officers or receivers as the court may name; ” for injunction and general relief. But the question now before us is whether the decree of the Circuit Court o.f Appeals affirming the" }, { "docid": "17296230", "title": "", "text": "that the Eureka Pipe Line Company be dismissed from the suit, wras granted. Thus the pleas to the jurisdiction, based upon the ground that the Eureka Pipe Line Company was a West Virginia corporation, and a resident of the district with the complainants, were held to be good; but the defect in jurisdiction caused thereby was supposed to be cured by the dismissal of the suit as to that company. By such decree the court also- in effect held that the circuit court of Wetzel county, W. Va., had not acquired jurisdiction of the controversy. The amended and supplemental bill was in substance the same as the original bill, save only that the allegations relating to the Eureka Pipe Line Company were omitted, and its prayer was for relief against the South Penn Oil Company asked for in the original bill. The case was duly matured, depositions taken, exhibits filed, argument heard, and final decree entered. By that decree the demurrer of appellant to the amended bill, incorporated in its answer, was considered by the court and overruled, and the questions raised by the special pleas to the jurisdiction of the court were formally found against appellant. The decree then proceeds to dispose of the real estate in controversy, giving to the appellees that portion thereof situated west of a certain designated line, and to the appellant the part east thereof. The money in the receiver’s hands was distributed between the parties, each to receive the portion arising from the oil obtained from the land, respectively, assigned them. Other provisions of the decree become immaterial. The South Penn Oil Company applied for and was granted the appeal we are now to dispose of. The jurisdiction of the court below is called- in question. It is insisted that the original bill should not have been entertained, because upon its face it was apparent that a court of equity did not have jurisdiction to determine the causes of action therein set forth. The material averments of that bill, in substance, charged four separate causes of action against the defendants: First, the complainants" }, { "docid": "22373842", "title": "", "text": "bankruptcy, asked that all further action in the state court might be süspended until the District Court had disposed of those proceedings, and contended that all his estate, rights and interests of every kind and description, had passed from the control of the Circuit Court of Barbour County and into the jurisdiction of the District Court. On November 18, 1899, a trustee in bankruptcy was appointed for Pickens’ estate, who in February, 1900, presented to the Circuit Court of Barbour County his petition in the chancery cause, asking that he be made a party, that his petition stand as an answer, and that the Circuit Court proceed to the enforcement of the liens against the bankrupt’s estate ; and, thereafter, on February 23, 1900, that court rendered a decree by which, among other things, it was ordered that the deed of trust referred to in the bill be set aside as fraudulent and that a special commissioner and receiver therein named should rent the land described until a certain day and then sell the same, the proceeds thereof to be applied to the payment of the debts due by Pickens. November 20, 1899, complainant Dent (Boy), “ without waiving her preference,” tendered her proof of debt before the referee in bankruptcy, it being the judgment in question, which was allowed as a preferred claim against the bankrupt’s estate. The receiver and commissioner appointed in the chancery court was proceeding to execute the decree therein when Pick-ens filed his bill in the District Court March 31, 1900, against Dent (Boy) and others, rehearsing the facts relating to the suit and to the proceedings in bankruptcy, charging that the trustee was not authorized to intervene iu the chancery cause, and asserting that the state court on the filing of Pickens’-answer setting up his adjudication should have taken no further action,- and that, therefore, the decree appointing the commissioner and receiver to rent and sell the real estate was without authority of law and void. The prayer was that defendants be restrained from all further proceedings in the suit so pending in the" }, { "docid": "22734157", "title": "", "text": "harmony with the rule theretofore laid down in Byers v. McAuley, supra, in which it was held that the Federal court could not exercise original jurisdiction to draw to itself the entire settlement of the estate of the decedent and the accounts of administration, or the power to determine all claims against the estate. But it was there decided that a Circuit Court of the United States could entertain jurisdiction in favor of citizens of other States to determine and award by decrees binding in personam their shares in the estates. In view of the cases cited, and the rules thus established, it is evident that the bill in this case goes too far in asking to have an accounting of the estate, such as can only be had in the probate court having jurisdiction of the matter; for it is the result of the cases that in so far as the probate administration of the estate is concerned in the payment of debts, and the settlement of the accounts by the executor or administrator, the jurisdiction of the probate court may not be interfered with. It is also true, as was held in the court below in the case at bar, that the prior possession of the state probate court cannot. be interfered with by the decree of the Federal court. Still, we think there is an aspect of this case within the Federal jurisdiction,. and for which relief may be granted to the complainant, if\"she makes out the allegations of her bill under the other prayers, and' the prayer for general relief therein contained. Under such prayer a court of equity will shape its decree according to-the ¿quity of the case. Walden v. Bodley, 14 Pet. 156, 164. The complainant, a citizen of a different State, brings her bill against the executor and certain legatees named, who arc likewise citizens of another State, and are all citizens of Louisiana, where the bill was filed, except one, who was beyond the jurisdiction of the court, and for the reasons stated in her bill she asks to have her interest" }, { "docid": "7553602", "title": "", "text": "held for naught as a cloud upon the title of the complainant in and to said lands.” This relief is purely equitable in its nature, and is the only relief the complainants are entitled to under the facts stated. The general prayer does not aid to enlarge or broaden the relief sought beyond what the facts set up in the bill show the plaintiff has the right to ask. In determining whether the relief sought is of a nature that a federal District Court is competent to administer, on the motion now under consideration, this court will look to the face of the complaint, and, upon the facts as there set up, decide what relief should be granted the complainants. The bill is silent on the question of possession and mesne profits, and this court cannot be expected to anticipate evidence or amendments which will enlarge the scope of the prayer for general relief, so as to embrace all the legal and equitable remedies afforded by the Mississippi statute. The general prayer cannot broaden relief beyond the pleadings at this stage of the case. Simkins, A Federal Suit in Equity, p. 283. There is nothing in the bill to indicate that the complainants were seeking in a state court to avail themselves of blended remedies afforded by a state statute, which a federal court could not administer. The only specific relief asked is the cancellation of. two void or voidable deeds, and under the facts set forth this is the only relief which complainants are entitled to under the general prayer. Taking to be true every fact alleged, it does not appear that the complainants need, desire, or are entitled to any other or further relief than the delivery up and cancellation of void or voidable instruments, and a federal court of equity is as fully competent to administer this relief in a proper case as a Mississippi chancery court. The bill does not show a state of facts, as in Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 977, 37 L. Ed. 804, where the plaintiff, under" }, { "docid": "4290446", "title": "", "text": "The government did not join the state, which then was innocent of intentional wrong, as a party defendant in the Milner Case, but followed the procedure ap-' proved in Williams v. United States, 138 U. S. 514,11 S. Ct. 457, 34 L. Ed. 1926. But it did serve upon the state, through its land board, a copy of the bill of complaint the day after it was filed. That bill alleged the ■ facts as to the misrepresentation, and further “that all of the aforesaid certified selections of the aforesaid lands should be declared null and void and of no effect, and all the conveyances by which any of the defendants claim right of possession or title to said lands herein described, should be set aside and held for naught, and complainant should be fully restored to the possession of < said lands, and all clouds upon the title removed therefrom.” It was also cited to the decision of the Supreme Court in the Williams Case, which held that a state, in similar situation, might intervene, or pursue the more dignified course of disclaiming any interest in the controversy and conforming its subsequent conduct to the decree of the court. The state of Utah followed neither course; it did not intervene; neither did it conform. It is therefore our conclusion that, under the peculiar circumstances of this case and under the doctrine of the Williams Case> the state is bound, in equity, by the decree of 1914. The limitation of the Act of March 3, 1891, no more applies to the state of Utah than to the defendant companies. The action here is not to cancel a patent nor a certification. Although an alternative prayer of cancellation is contained in the government’s cross-bill against the state, the primary relief sought against the state is the same as that against the companies — to impress. a trust on such title as it has in aid of the 1914 decree. That statute does not therefore bar this action. That the state has no just claim to these lands is clear. It is" }, { "docid": "17931235", "title": "", "text": "his $25,000 to use as they are advised. So far as McGinley is concerned, the decree entered, if he was not in court, would be wholly inconsistent with equity and good conscience. The bill prayed that the contract with McGinley be vacated and set aside. When he voluntarily appeared and was allowed to intervene, then a controversy was presented not within the judicial power of the court, as he was a citizen of the same state as the two other complainants. With McGinley out of court, no decree affecting his interest could be made, and in court he ousted the court of jurisdiction. It is claimed by counsel for appellees that when William McGinley intervened in the action he did not by such intervention oust the court of its jurisdiction. The following cases are cited in support of this contention: Phelps v. Oaks, 117 U. S. 236, 6 Sup. Ct. 714, 29 L. Ed. 888; Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27, 28 L. Ed. 145; Hardenbergh v. Ray, 151 U. S. 112, 14 Sup. Ct. 305, 38 L. Ed. 93; People of Porto Rico v. Ramos, 232 U. S. 627, 34 Sup. Ct. 461, 58 L. Ed. 763. These cases do not support counsel’s contention. Without reviewing these cases, it is sufficient to say that they establish a well-known rule in federal equity practice, namely, that when a stranger to the action, or one who is not an indispensable party thereto, intervenes therein, in order to protect his own interest, his citizenship will not oust the court of jurisdiction; but this is on the theory that the court already has jurisdiction of tire cause of action and of the parties and can proceed to judgment without the party who seeks to intervene. But in the case at bar both by the relief prayed for and the relief granted McGinley was an indispensable party, without whom the court could not render the decree which it did. He voluntarily appeared, but his appearance was fatal to the court’s jurisdiction for the reasons stated. Whatever might be said" }, { "docid": "4290445", "title": "", "text": "not bound by the decree therein. But the conclusion does not follow. The state has parted with the title; the interest it now claims is a mortgage, taken from the Carbon County Land Company. As such mortgagee, it holds under that company; it cannot assert that it acquired its mortgage without knowledge of the infirmity of its grantor’s title, and is not therefore entitled to the protection afforded a bona fide purchaser; as a privy in title, it is bound by the decree under familiar rules. The argument for the state is predicated upon the assumption that it is an ancestor in title to the Carbon County Land Company, rather than a privy. It is doubtful if this is a fair assumption, since the state has seen fit, for purposes of its own, to part with its title unconditionally, and take back a mortgage. But, assuming that the holder of a purchase-money mortgage has the same rights as one who has retained the title and merely contracted to sell, we come to the same conclusion. The government did not join the state, which then was innocent of intentional wrong, as a party defendant in the Milner Case, but followed the procedure ap-' proved in Williams v. United States, 138 U. S. 514,11 S. Ct. 457, 34 L. Ed. 1926. But it did serve upon the state, through its land board, a copy of the bill of complaint the day after it was filed. That bill alleged the ■ facts as to the misrepresentation, and further “that all of the aforesaid certified selections of the aforesaid lands should be declared null and void and of no effect, and all the conveyances by which any of the defendants claim right of possession or title to said lands herein described, should be set aside and held for naught, and complainant should be fully restored to the possession of < said lands, and all clouds upon the title removed therefrom.” It was also cited to the decision of the Supreme Court in the Williams Case, which held that a state, in similar situation, might" }, { "docid": "11185841", "title": "", "text": "the plaintiffs in the lands in question' to be deemed the value, of the matter in dispute, or was the Circuit Court without jurisdiction if no one of the alleged fraudulent' claims held by the defendants exceeded two thousand .dollars, exclusive of interest and costs? Some light will be thrown upon this question by certain cases in which this court held it to be competent for a Circuit Court, in a suit in equity, to deprive parties of the benefit of a judgment or order fraudulently obtained by them in a state court. In Johnson v. Waters, 111 U. S. 640, 667, the question was as to the authority of a Circuit Court to set aside as fraudulent and void certain sales made by a testamentary executor under the orders of a Probate Court. Conceding that the administration of the estate there in question properly belonged to the Probate Court, and that in a general sense its decisions were conclusive, especially upon parties, Mr. Justice Bradley, speaking for this court said: “But this is not universally true. The most solemn transactions and judgments may, at the instance of the parties, be set aside or rendered inoperative for fraud. The fact of being a party does not estop a person from obtaining in a court of equity relief against fraud. It is generally parties that are the victims of fraud. The Court of Chancery is always open to hear complaints against it, whether committed in pais or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any irregularities or errors of proceeding in another court; but it will scrutinize the conduct of the parties, and- if it finds that they have been guilty of fraud in obtaining a judgment of decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it.” In Arrowsmith v. Gleason, 129 U. S. 86, 98, the question was whether the Circuit Court had jurisdiction by its decree to set aside" }, { "docid": "11185842", "title": "", "text": "universally true. The most solemn transactions and judgments may, at the instance of the parties, be set aside or rendered inoperative for fraud. The fact of being a party does not estop a person from obtaining in a court of equity relief against fraud. It is generally parties that are the victims of fraud. The Court of Chancery is always open to hear complaints against it, whether committed in pais or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any irregularities or errors of proceeding in another court; but it will scrutinize the conduct of the parties, and- if it finds that they have been guilty of fraud in obtaining a judgment of decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it.” In Arrowsmith v. Gleason, 129 U. S. 86, 98, the question was whether the Circuit Court had jurisdiction by its decree to set aside a sale of an infant’s lands fraudulently made by his guardian under authority derived from a Probate Court, and give such relief as would be consistent with equity. One of the grounds of demurrer to the bill in that .case was that the Circuit Court had no authority to set' aside and vacate the orders of the state court. This court said: “ If by this is meant only that the Circuit Court .cannot by its orders act directly upon the Probate Court, or that the Circuit Court cannot compel or require the Probate Court to set aside or vacate its own orders, the position of the defendants could not be disputed. But it does not follow that the right of Harmenirig, in his lifetime, or of his heirs since his death, to hold these lands, as against the plaintiff, cannot be questioned in a court of general equitable jurisdiction upon the ground of fraud. -If the case made by the bill is clearly established by proof, it may be assumed that some state court," }, { "docid": "22217262", "title": "", "text": "the ground that fraud could not be pleaded to an action in one State upon a judgment obtained in another. In Maxwell v. Stewart, 22 Wall. 77, 81, the very same question was presented to this court, in'a similar case, upon the same plea, and this principle wa.s reaffirmed. In Hamley v. Donoghue, 116 U. S. 1, 4, the court said, Mr. Justice Gray delivering the opinion: “ Judgments recovered in one State of the Union, when proved in the courts of another, differ from judgments recovered in a foreign country in no other respect than that of not being reexaminable upon the merits, nor impeachable for fraud in obtaining .them, if rendered by a court having jurisdiction of the cause and of. the parties ; ” citing Buckner v. Finley, 2 Pet. 592; M’Elmoyle v. Oohe, 13 Pet. 312, 324; D’Arcy v. Ketchum, 11 How. 165, 176; Christmas v. Russell, 5 Wall. 290, 305; Thompson v. Whitman, 18 Wall. 457. The case of Broderick’s Will, 21 Wall. 503, upon thi, point is absolutely conclusive against the appellants. That was a bill in equity brought by the alleged heirs-at-law of Broderick to set aside and annul the probate of his will in the probate court of California, and to recover the property belonging to his estate, or to have the purchasers at the executor’s sale thereof, and those deriving title from them, charged as trustees for the benefit of complainants. The bill alleged that the will was forged; that the grant of letters testamentary-and the orders for the sale of the property were obtained by fraud,' all of which proceedings, as well as the death of the decedent, were unknown to the complainants until within three years before the filing of the bill. A demurrer to the bill was overruled and the case was appealed to this court. It was held, Mr. Justice Bradley delivering the opinion, that a court of equity will not entertain jurisdiction to set aside the probate of a will, on the ground of fraud, mistake or forgery, this being within the exclusive jurisdiction of the" }, { "docid": "11185840", "title": "", "text": "Mr. Justice Harlan, after making the foregoing statement, delivered the opinion of the court. If, within the meaning of the judiciary act of 1887, 1888, the value of the matter in dispute ■ exceeded the sum of two thousand dollars, exclusive of interest and costs (25 Stat. 433), then there was no reason for dismissing the bill for want of jurisdiction in the Circuit Court; for, diversity of citizenship was shown by the bill, and under the above act of March 3, 1875, c. 137, 18 Stat. 470, it was competent for the Circuit Court, by a final decree, to remove any encumbrance or lien or cloud upon the title to real or personal property within the district, as • against persons not inhabitants • thereof and not found therein, or who did not voluntarily appear in the suit. The lands of which Hiram Evans died possessed were of the alleged value of $16,000, and we assume that the plaintiffs jointly owned one undivided half of them. Was the value, of the joint interest of the plaintiffs in the lands in question' to be deemed the value, of the matter in dispute, or was the Circuit Court without jurisdiction if no one of the alleged fraudulent' claims held by the defendants exceeded two thousand .dollars, exclusive of interest and costs? Some light will be thrown upon this question by certain cases in which this court held it to be competent for a Circuit Court, in a suit in equity, to deprive parties of the benefit of a judgment or order fraudulently obtained by them in a state court. In Johnson v. Waters, 111 U. S. 640, 667, the question was as to the authority of a Circuit Court to set aside as fraudulent and void certain sales made by a testamentary executor under the orders of a Probate Court. Conceding that the administration of the estate there in question properly belonged to the Probate Court, and that in a general sense its decisions were conclusive, especially upon parties, Mr. Justice Bradley, speaking for this court said: “But this is not" }, { "docid": "13875988", "title": "", "text": "GOFF, Circuit Judge. This is an appeal from a decree rendered on the 1st of September, 1896, by the circuit court of the United States for the district of West Virginia, by which it was held that the complainants below had title to the 17,850 acres of land mentioned in their bill; that the proceedings referred to therein, instituted in the circuit court of McDowell county, W. Va., by the defendant H. C. Auvil, as commissioner of school lands for that county, against a tract of 320,000 acres of land granted by the commonwealth of Virginia to Robert Morris by patent dated March 4, 1795 (and against the lands of the complainants), were null and void; and also that the deeds made under certain decrees entered in said proceedings were clouds upon the title to complainants’ land, which should be and were removed, because such conveyances were void and inop erative. Complainants’ bill charges specifically that the proceedings instituted by said school commissioner were fraudulently conceived and prosecuted, and its object was to declare them void because of such fraud, and thereby restore complainants to the enjoyment of their property, free from the embarrassment occasioned by the decrees and deeds alleged to be the result of said unlawful proceedings. The record is most voluminous, and contains much that is foreign to the matters really presented by the pleadings, which has, we fear, templed counsel to discuss many interesting propositions of law relating to land titles which are not essential to the disposition of this case. As we find the matter, the questions to be decided are few, and far from being intricate. The first question presented by the assignment of errors is as to the jurisdiction of the court'. Appellants insist that the court below, as a court of equity, had no jurisdiction of this case, for the reason that it was not alleged in the bill that the complainants were in possession of the land referred to therein at the time of the institution of this suit, the appellants claiming that such allegation was necessary, as the object of" }, { "docid": "20075570", "title": "", "text": "“capricious” and “arbitrary” decision of the Michigan supreme court. The State Bar in its motion to dismiss brings in some matters that would ordinarily go into an answer, but it was apparent to this court that since plaintiff called for a declaration of rights as evidenced by certain decrees and orders and other court records, we could not reach an intelligent conclusion without further examination of those decrees and orders and the official records upon which plaintiff based his entire case, regardless of any affidavits in the motion to dismiss. Going outside the bill of complaint was, in our opinion, made mandatory by the bill itself. This would be “clarification” and it would be our duty to do so. Gallup v. Caldwell and Paramino Lumber Company v. Marshall, supra. We compared, also, the prayers in both the Ingham and federal bills of complaint and found that they are, as contended by petitioner, practically the same with one single exception — that in the present suit plaintiff in his third paragraph asks us to hold that “the several ORDERS of the Probate Court for Wayne County authorizing and confirming the sales of the equities of the real estate described herein WERE FINAL AND CONCLUSIVE, and that the three DECREES of the Oakland County Court mentioned herein were likewise final and conclusive and constituted judicial and legal judgments and determinations.” (Capitals ours.) This, Mr. Emmons did not directly pray in the Ingham suit unless we interpret the word “matters” in that action to mean “orders” and “decrees” — which we do not. The word “matters” is broader than “orders” or “decrees”. In reply to the court’s suggestions at the hearing that there was obviously merit to this prayer, defendants announced that they never did question the finality, conclusiveness or determinative value of such decrees and orders as to issues before the court therein, but that the grievance complaint against Emmons begins with what happened following 1928 when Emmons reported to the probate court of Wayne County that he was then turning over about one million dollars worth of property from the closing" }, { "docid": "13875989", "title": "", "text": "void because of such fraud, and thereby restore complainants to the enjoyment of their property, free from the embarrassment occasioned by the decrees and deeds alleged to be the result of said unlawful proceedings. The record is most voluminous, and contains much that is foreign to the matters really presented by the pleadings, which has, we fear, templed counsel to discuss many interesting propositions of law relating to land titles which are not essential to the disposition of this case. As we find the matter, the questions to be decided are few, and far from being intricate. The first question presented by the assignment of errors is as to the jurisdiction of the court'. Appellants insist that the court below, as a court of equity, had no jurisdiction of this case, for the reason that it was not alleged in the bill that the complainants were in possession of the land referred to therein at the time of the institution of this suit, the appellants claiming that such allegation was necessary, as the object of the suit was to remove clouds from the title to said land, caused by the existence of the proceedings and deeds mentioned. In the first place, this is a misconception of the scope of complainants’ bill, for its evident purpose was not only to remove said clouds from their title, but also to set aside as fraudulent certain proceedings had in the circuit court of McDowell county, W. Va., to declare the deeds made in pursuance thereof null and void, and to decree that complainants’ lands should be held by them freí' from Hie lien of certain taxes and of the claim of forfeiture set up in said proceedings. If is alleged in the bill that George J. Burk-hard t died seised and possessed of the land proceeded against, and that the complainants are his legal heirs. In suits of this character such allegations are sufficient to give a court of equity jurisdiction, for under such circumstances, where fraud is charged, or the cloud is caused by a tax deed, the remedy at law is" }, { "docid": "23161706", "title": "", "text": "the Mantón estate, and upon all persons deriving. title under them, have been continuously prosecuted. But: prosecutions to stop the operations of the statute must be successful, and lead to a change in the possession- Wh<?n fraud is alleged as a ground to set aside a title, the •statute does not begin to run until tbe fraud is discovered; and this is tbe ground on which the complainant asks relief. But, in such a case, the bill must be specific in' stating the. facets and circumstances which constitute the fraud; and also as to the time it was discovered. This is necessary to enable the defendants to meet the fraud, and the alleged time of its discovery. In these respects the bill is defective, and the evidence is still more so. The complainant’s counsel seem to suppose, that as the defendants in their answer admit the property, at least in part, was originally acquired under a sale of Manton’s • administrator, they are bound to show the proceedings were not only conformable to law, but that they must go further, and prove the debts for which it was sola were due and owing by the deceased. So far from this being the legal rule, under the circumstances of this case, the presumptions are in favor of the present occupants, and the complainants must show the administrator’s sale was illegal and void. After an adverse possession of more than eighty years, when the faets have passed from the memory, and, as in this case, the papers are not to be found in the probate court, no court can require of the defendants proof in regard to such sale. The burden of proof falls upon him who attempts to disturb a possession of ages, transmitted and enjoyed under the forms of law.. Whether we consider .the great lapse, of time, and the change in the value of the property, or the statutes of limitation, the right of the complainant is barred. The decree of the Circuit Court is affirmed." }, { "docid": "13875990", "title": "", "text": "the suit was to remove clouds from the title to said land, caused by the existence of the proceedings and deeds mentioned. In the first place, this is a misconception of the scope of complainants’ bill, for its evident purpose was not only to remove said clouds from their title, but also to set aside as fraudulent certain proceedings had in the circuit court of McDowell county, W. Va., to declare the deeds made in pursuance thereof null and void, and to decree that complainants’ lands should be held by them freí' from Hie lien of certain taxes and of the claim of forfeiture set up in said proceedings. If is alleged in the bill that George J. Burk-hard t died seised and possessed of the land proceeded against, and that the complainants are his legal heirs. In suits of this character such allegations are sufficient to give a court of equity jurisdiction, for under such circumstances, where fraud is charged, or the cloud is caused by a tax deed, the remedy at law is not plain, adequate, and complete. This ground of equity jurisdiction and this rule of procedure is now so well established that it will not be questioned by tills court, particularly concerning suits having reference to deeds made under the provisions of the West Virginia -statutes referring to forfeited and delinquent lands in that state. Gage v. Kaufman. 133 U. S. 471, 10 Sup. Ct. 406; Coal Co. v. Doran, 142 U. S. 417, 449, 12 Sup. Ct. 239; Rich v. Braxton, 358 U. S. 375, 406, 15 Sup. Ct. 1006: Harding v. Guice, 42 U. S. App. 411, 25 C. C. A. 352, and 80 Fed. 162; Christian v. Vance, 41 W. Va. 754, 24 S. E. 596. The next assignment of error relates to the finding of the court below that the complainants had title to the 17,850 acres claimed by them in their bill, appellants insisting this was error, for the reason that the record shows complainants’ title to the same had been forfeited to the state of West Virginia for nonentry upon" }, { "docid": "22753082", "title": "", "text": "the county court, and appointed a master to state an account with Hook as administrator. Moreover, the master was directed to inquire what other persons were interested in the estate, and to report what payments, if any, had been made to them, and what was due to.them respectively at the date of the report. The report of the master not only accorded the relief claimed by tfie complainants, but restated the accounts of the administrator, and in effect reported a scheme of distribution of the estate. The report was approved by the trial court. In this court the decree, in so far as it concerned the rights of the complainants, was affirmed. ' In so far as it attempted to distribute the estate and to deal generally with the rights of persons, other than the complainants, the decree was reversed, the court saying (p. 255): “We are of opinion that all that part of the decree which attempts to settle the rights of the parties, who were neither plain.tiffs nor defendants in the original suit, must be reversed. “We do not propose, in this case, to lay down any precise rule on the subject of adjusting administrator’s accounts in the Federal courts, or how far certain persons, not made parties to the original suit, or incapable of being made parties by reason of their citizenship, may or may not come in before the master, On a general accounting, and protect their rights; nor do we intend to go into that question.” In Broderick’s Will, 21 Wall. 503, the case was- this; A suit in equity was brought in the Circuit-Court for the District of California by the alleged heirs at law of Broderick to set aside the probate of his will, to have the same declared a forgery, and to recover the assets of Broderick’s estate, much of which consisted of real property. The defendants were the executors, and several hundred persons who were in possession of portions of the real estate, claiming ownership thereof as purchasers at sales made by the executors. The estate had been administered upon and" } ]

[ { "docid": "23483567", "title": "", "text": "been paid by the insurers before the injured parties filed suit for the amount of the loss. No motion to substitute the insurers in their own names as plaintiffs was made until after the period of limitations had run. The court referred to Rule 17(a), which provides that “Every action shall be prosecuted in the name of the real party in interest * * and stated that either the owners, who were in a position like that of the original plaintiffs here, or an insurer who had paid part of the loss, should appear in the litigation in their own names, and “either may institute the action,” though upon timely motion the other should be joined. The court continued, “And where, as here, the insurers pay the owners in full for the loss and become subrogated to all of the rights of such owners against the alleged wrongdoer, the action against the alleged wrongdoer to recover in tort must be maintained in the name of the insurers. United States v. Aetna Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171; American Fidelity & Casualty Co. v. All American Bus Lines, 10 Cir., 179 F.2d 7; Gas Service Co. v. Hunt, 10 Cir., 183 F.2d 417.” 194 F.2d at 944. Nevertheless the court permitted the substitution of the insurers in their own names as plaintiffs. The court did not consider that the statement in the Aetna case that if the subrogee has paid the entire loss it is the only real party in interest and must sue in its own name as a holding that precluded the continuance in the name of the subrogee of the suit initiated by the insured for the use of the subrogee. We are of like opinion, that is to say that though brought in the name of the insureds, this suit was not a nullity, since, as we hold, it was brought for the use of the real parties in interest. It was thus not so lacking in validity as to furnish no support for a motion to bring it into compliance with" } ]

[ { "docid": "6225582", "title": "", "text": "for abuse of discretion.” Schreiber, 407 F.3d at 43-44. Rule 17(a)(1) requires that an action “be prosecuted in the name of the real party in interest.” In Part II of our opinion, above, we concluded that the district court was correct in deciding that, absent an assignment of the claims in issue, this lawsuit was not brought or prosecuted in the name of the real party in interest. But Rule 17(a)(3) prohibits a court from dismissing an action for failure to comply with subsection (a)(1) “until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action.” The real party in interest principle embodied in Rule 17 ensures that only “a person who possesses the right to enforce [a] claim and who has a significant interest in the litigation” can bring the claim. Schreiber, 407 F.3d at 48 n. 7 (quoting Va. Elec. & Power Co. v. Westinghouse Elec. Corp., 485 F.2d 78, 83 (4th Cir.1973)); see also Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir.2003) (“[A]n action must be brought by the person who, according to the governing substantive law, is entitled to enforce the right.” (internal quotation marks omitted)). The rule was initially adopted to ensure that assignees could bring suit in their own names, contrary to the common-law practice. See Fed.R.Civ.P. 17 advisory committee’s notes, 1966 Amendment. However, “the modern function of the rule ... is [] to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.” Id.; see also Gogolin & Stelter v. Karn’s Auto Imports, Inc., 886 F.2d 100, 102 (5th Cir.1989) (“The purpose of the rule is to prevent multiple or conflicting lawsuits by persons such as assignees, executors, or third-party beneficiaries, who would not be bound by res judicata principles.”). The dismissal provision in Rule 17(a)(3) was added later “to avoid forfeiture and injustice when an understandable mistake has been made in selecting the party" }, { "docid": "17999331", "title": "", "text": "The following defendants subsequently adopted and joined in the Sumiton defendants’ motion for reconsideration: Dr. David Wilson; John Mark Tirey, Sheriff of Walker County; Trent McCluskey, Jail Administrator, Walker County; Deputy Jonathan Long; Deputy Rachael Harper; Lieutenant Richard DeJesus; Deputy Alfred Grace; and the Walker County Commission. See doc. nos. 96 (Defendant Dr. David Wilson’s Adoption of and Joinder in the Sumiton Defendants’ Motion to Reconsider), and 97 (Defendants Tirey, McCluskey, Long, Harper, DeJesus, Grace, and Walker County Commission's Adoption of and Joinder in the Sumiton Defendants’ Motion to Reconsider). . The full text of this Rule, as it read on Oct. 21, 1982—the date of the Eleventh Circuit’s opinion in Hess v. Eddy—read as follows: (a) Real Party In Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution ch. the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. Fed.R.Civ.P. 17(a) (1982) (emphasis supplied). . In Levinson v. Deupree, 345 U.S. 648, 650, 73 S.Ct. 914, 97 L.Ed.2d 1319 (1953), the Supreme Court held that where a wrongful death action is brought by a party not yet properly appointed as the administrator of the decedent’s estate, and where proper appointment occurs only after the applicable state" }, { "docid": "9688865", "title": "", "text": "made a reasonable effort to track down and verify the status of the individuals he filed suit on behalf of. And as an “explanation” for filing personal injury suits for 100 smokers whom he presumably knew to be dead (because his files indicated contact with these “clients” after the plaintiff-smoker’s date of death), Mr. Wilner simply chalks it up to “reasons that can never be determined.” Doc. 822, at 14. On this record, plaintiffs’ counsel would have us overturn the District Court’s refusal to allow the substitution of plaintiffs under Rule 17(a)(3). However, they never cogently explain where the District Court went wrong in concluding that Rule 17(a)(3) was unavailable in these cases because of their failure to establish that Mr. Wilner’s 588 “mistakes” were understandable. Instead, they direct our attention to various recitations of the rule’s policy underpinnings to support the general point that Rule 17(a)(3) was promulgated to avoid forfeiture of otherwise valid claims. From that they insinuate that the District Court must have erred because plaintiffs’ counsel have now identified the real plaintiffs in these cases, and those plaintiffs are now willing and able to proceed. But as the Advisory Committee and courts applying the rule have made clear, Rule 17(a)(3) isn’t a plenary license to fix “pleadings errors” in all cases for all reasons. Rather, the rule “is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Fed.R.Civ.P. 17, Advisory Comm. Notes, 1966 Amend. In fact, as an example of the type of conduct that isn’t covered by the rules, the Advisory Committee offers an example that resembles Mr. Wil-ner’s en masse filing: [Rule 17(a)(3) ] does not mean, for example, that, following an airplane crash in which all aboard were killed, an action may be filed in the name of John Doe (a fictitious person), as personal representative of Richard Roe (another fictitious person), in the hope that at a later time the attorney filing the action may substitute the real name of the real personal representative of a real victim, and" }, { "docid": "9286276", "title": "", "text": "\"discarded the cumbersome procedures for 'use' actions at law\"). The Rule provides that \"[a]n action must be prosecuted in the name of the real party in interest,\" and specifies seven categories of individuals who \"may sue in their own names without joining the person for whose benefit the action is brought\": (1) executors; (2) administrators; (3) guardians; (4) bailees; (5) trustees of express trusts; (6) parties \"with whom or in whose name a contract has been made for another's benefit\"; and (7) parties authorized by statute. Fed. R. Civ. P. 17(a). \"The list in Rule 17(a) is not meant to be exhaustive and anyone possessing the right to enforce a particular claim is a real party in interest even if that party is not expressly identified in the rule.\" Wright & Miller § 1543 (emphasis added). As stated in Wright & Miller, the effect of Rule 17(a)\"is that the action must be brought by the person who, according to the governing substantive law, is entitled to enforce the right .\" Id. (emphasis added). Indeed, \"[t]he basis for the real-party-in-interest rule was stated by the Advisory Committee in its Note to the 1966 amendment to Rule 17(a)\" as follows: [T]he modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure generally that the judgment will have its proper effect as res judicata. Id. The treatise also notes that, \"[i]n order to apply Rule 17(a)(1) properly, it is necessary to identify the law that created the substantive right being asserted by plaintiff.\" Id. Two questions we must answer, then, are (1) what \"right\" is being enforced; and (2) who is \"entitled\" to enforce that right. In the context of IPRs-adversarial proceedings that offer \"a second look at an earlier administrative grant of a patent,\" Cuozzo , 136 S.Ct. at 2144 -the \"right\" being enforced is a petitioner's right to seek administrative reexamination of the patentability of issued claims as an alternative to invalidating those claims in a judicial proceeding. Thus, the focus of" }, { "docid": "10650748", "title": "", "text": "after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification * * * shall have the same effect as if the action had been commenced in the name of the real party in interest. This amendment, also effective as of January 1, 1970, and made applicable to actions pending on that date (including the instant case) as well as to actions commenced on and after that date, is identical to the corresponding portion of Rule 17(a) of the Federal Rules of Civil Procedure as amended February 28, 1966, effective July 1, 1966. The notes of the Advisory Committee on federal rules state that the amendment was intended to codify the salutary principle of Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319 (1953) and Link Aviation, Inc. v. Downs, 117 U.S. App.D.C. 40, 325 F.2d 613 (1963). In Levinson the court held that under federal practice where a libel to recover damages under a state wrongful death act was timely filed by an ancillary administrator appointed, as here, by a state court without jurisdiction to do so, the libel could be amended at a time when a new suit would be barred so as to allege the subsequent effective appointment of the same person as ancillary administrator by a state court hav ing jurisdiction. In Link where a suit for damages was brought by the insured after the insurers had paid their claim prior to the filing of the suit and therefore became the real party in interest, the court held that a motion to amend the complaint to substitute the insurers as plaintiffs did not set forth a new cause of action which would be barred because the statute of limitations had run at the time the motion was made. In Graves v. Welborn, supra, 260 N.C. at 694, 133 S.E.2d at 765, Justice Sharp, speaking for the Supreme Court of North Carolina said: It is a long established rule in the Federal courts that a lack of letters of administration may be" }, { "docid": "23275310", "title": "", "text": "against him.” The Advisory Committee note on the Rule 15(c) amendment states in part: “In actions between private parties, the problem of relation back of amendments changing defendants has generally been better handled by the courts, but incorrect criteria have sometimes been applied * * *. Rule 15(c) has been amplified to provide a general solution. * * * “The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs. Also relevant is the amendment of Rule 17(a) (real party in interest). To avoid forfeitures of just claims, revised Rule 17(a) would provide that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for correction of the defect in the manner there stated.” 28 U.S.C.A. Rule 15, 1966 Cum.P.P., Notes pp. 83-84. The addition to Rule 17(a) by the 1966 amendment referred to in the comment to Rule 15, supra, provides: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” The Advisory Committee comment on the amendment includes: “This provision keeps pace with the law as it is actually developing. Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed — in both maritime and nonmaritime cases. See Levinson v. Deupree, 345 U.S. 648, [73 S.Ct. 914, 97 L.Ed. 1319 (1953)]; Link Aviation, Inc." }, { "docid": "6225583", "title": "", "text": "Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir.2003) (“[A]n action must be brought by the person who, according to the governing substantive law, is entitled to enforce the right.” (internal quotation marks omitted)). The rule was initially adopted to ensure that assignees could bring suit in their own names, contrary to the common-law practice. See Fed.R.Civ.P. 17 advisory committee’s notes, 1966 Amendment. However, “the modern function of the rule ... is [] to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.” Id.; see also Gogolin & Stelter v. Karn’s Auto Imports, Inc., 886 F.2d 100, 102 (5th Cir.1989) (“The purpose of the rule is to prevent multiple or conflicting lawsuits by persons such as assignees, executors, or third-party beneficiaries, who would not be bound by res judicata principles.”). The dismissal provision in Rule 17(a)(3) was added later “to avoid forfeiture and injustice when an understandable mistake has been made in selecting the party in whose name the action should be brought.” 6A Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 1555 (3d ed.2014). That provision codifies the modern “judicial tendency to be lenient when an honest mistake has been made in selecting the proper plaintiff.” Id. If a party successfully moves for ratification, joinder, or substitution, “the action proceeds as if it had been originally commenced by the real party in interest.” Fed.R.Civ.P. 17(a)(3). Crucially for statute of limitations purposes, the claim of the real party in interest therefore dates back to the filing of the complaint. Cortlandt argues that although its lawsuit was dismissed for lack of subject matter jurisdiction, the dismissal was based solely on the fact that Cortlandt was not the real party in interest. It should therefore have been permitted either to amend the complaint to substitute the parties who actually held the claims at issue as plaintiffs in the lawsuit, or to amend its agreement with the real parties in interest to transfer title to the claims to Cortlandt, thereby" }, { "docid": "21684696", "title": "", "text": "interest in every case. In order to substitute the trustee as the real party in interest, Plaintiff must first establish that when he brought this action in his own name, he did so as the result of an honest and understandable mistake.”); Lans v. Gateway 2000, Inc., 84 F.Supp.2d 112, 120 (D.D.C.1999) (“it is appropriate to liberally grant leave to substitute a real party in interest when there has been an honest mistake in choosing the nominal plaintiff, meaning that determination of the proper party was somehow difficult at the time of the filing of the suit, or that the mistake is otherwise understandable.”), aff'd, 252 F.3d 1320 (Fed.Cir.2001); South African Marine Corp. v. United States, 640 F.Supp. 247, 254-55 (Ct. Int’l Trade 1986) (Rule 17(a) “should be used to prevent forfeiture and injustice where the determination as to who may sue is difficult”). In dismissing the complaint and denying the motion to vacate, the district court did not address whether Wieburg had a reasonable time after GTE’s objection during which to obtain joinder, ratification, or substitution of the Trustee, or whether her decision to pursue the action in her own name was the result of an understandable mistake. More importantly, it is unclear whether the district court considered the impact of the dismissal on Wieburg’s creditors, who are owed approximately $40,000. Because the statute of limitations has expired, the Trustee is precluded from asserting the discrimination claims in a subsequent action. Thus, the district court’s dismissal of the action means that the creditors will have no possibility of any recovery. Under these circumstances, and in the light of Rule 17(a)’s purpose of preventing forfeitures, we believe that it was an abuse of discretion for the district court to dismiss the action without explaining why the less drastic alternatives of either allowing an opportunity for ratification by the Trustee, or joinder of the Trustee, were inappropriate. See Sun Refining & Marketing Co. v. Goldstein Oil Co., 801 F.2d 343, 345 (8th Cir.1986) (Rule 17(a) designed to avoid unjust forfeiture of claims). VI For the foregoing reasons, the judgment of the" }, { "docid": "22174194", "title": "", "text": "Civil § 1542 (3d ed. 2010), another authority succinctly summarizes the practical distinction: “Generally, real parties in interest have standing, but not every party who meets the standing requirements is a real party in interest.” 4 Moore’s Federal Practice § 17.10[1], at p. 17-15 (3d ed. 2010) (footnotes omitted). As a result, if neither Wells Fargo nor AHMSI is a real party in interest, we need not parse the remaining differences between standing and real party in interest status. We thus concentrate on real party in interest status and whether Wells Fargo or AHMSI met their burden of demonstrating that they qualified as real parties in interest. A Real Party in Interest Status and Its Policies Civil Rule 17(a)(1) starts simply: “An action must be prosecuted in the name of the real party in interest.” Although the exact definition of a real party in interest may defy articulation, its function and purpose are well understood. As stated in the Advisory Committee Notes for Civil Rule 17, In its origin the rule concerning the real party in interest was permissive in purpose: it was designed to allow an assign-ee to sue in his own name. That having been accomplished, the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata. Notes of Advisory Committee on 1966 Amendments to Rule 17. See also U-Haul Int'l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1039 (9th Cir.1986) (“ ‘The modern function of the rule ... is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judica-ta.’ ”) (quoting Advisory Committee Notes to the 1966 amendment of Civil Rule 17). In this regard, most real party in interest inquiries focus on whether the plaintiff or movant holds the rights he or she seeks to redress. See Moore’s, supra, § 17.10[1]. Was, for example," }, { "docid": "18394518", "title": "", "text": "and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. The effect of Fed.R.Civ.P. 17(a) is that the action must be brought by the person who, according to the governing substantive law, is entitled to enforce the right. Mason-Rust v. Laborers’ International Union of North America, AFL-CIO, Local 42, 435 F.2d 939 (8th Cir. 1980); U. S. v. 9S6.71 Acres of Land, More or Less, Situated in Brevard County, State of Florida, 418 F.2d 551 (5th Cir. 1969); Boeing Airplane Co. v. Perry, 322 F.2d 589 (10th Cir.), cert. denied, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1963). Thus, the action will not necessarily be brought in the name of the person who ultimately benefits from the recovery. Galarza v. Union Bus Lines, Inc., 38 F.R.D. 401 (D.C.Tex.1965), affirmed per curiam, 369 F.2d 402 (5th Cir. 1966); Race v. Hay, 28 F.R.D. 354 (D.C.Ind.1961). The basis for the real party in interest rule was stated by the Advisory Committee in the 1966 Amendment to Rule 17(a) as follows: [T]he modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata. In the instant ease, Reichhold asserts that it is an insured under the policy which had been issued by Travelers to Rogers Cartage. However, Travelers may be correct in its assertion that Reichhold is not the person who will ultimately benefit from a" }, { "docid": "23275311", "title": "", "text": "28 U.S.C.A. Rule 15, 1966 Cum.P.P., Notes pp. 83-84. The addition to Rule 17(a) by the 1966 amendment referred to in the comment to Rule 15, supra, provides: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” The Advisory Committee comment on the amendment includes: “This provision keeps pace with the law as it is actually developing. Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed — in both maritime and nonmaritime cases. See Levinson v. Deupree, 345 U.S. 648, [73 S.Ct. 914, 97 L.Ed. 1319 (1953)]; Link Aviation, Inc. v. Downs, [117 U.S. App.D.C. 40,] 325 F.2d 613 (1963). The provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. * * * ” 28 U.S.C.A. Rule 17, Cum.P.P. Notes p. 5. We also note that Rule 17(c) provides in part: “The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.” It appears to us that Rules 15(c) and 17(a) as amended clearly are designed to and in fact do cover the relation back situation here presented. We believe that the plain language of such rules compels the result we reach but if any interpretation problem should exist, we observe that the Supreme Court in Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373, 86 S.Ct. 845, 851, 15 L.Ed.2d 807, states: “These rules" }, { "docid": "504481", "title": "", "text": "denied, 415 U.S. 935, 94 S.Ct. 1450, 39 L.Ed.2d 493, and cert. denied sub nom. Stone & Webster Engineering Corp. v. Virginia Elec. & Power Co., 415 U.S. 935, 94 S.Ct. 1450, 39 L.Ed.2d 493 (1974); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1543, at 334 (2d ed. 1990). There may be multiple real parties in interest for a given claim, and if the plaintiffs are real parties in interest, Rule 17(a) does not require the addition of other parties also fitting that description. See Wright et al. supra, at 340; see also, e.g., Fed.R.Civ.P. 17(a) (“An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought_”). Thus, insofar as the HB entities are authorized to bring suit under Delaware law — even derivatively or otherwise on behalf of the Partnership — they are also real parties in interest. This conclusion is informed by the fact that the original purpose of the real party in interest rule was permissive — to allow an assignee to sue in his or her own name. Fed.R.Civ.P. 17 Advisory Committee Notes to the 1966 Amendment. The “modem function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure generally that the judgment will have its proper effect as res judicata.” Id. As noted above, any doubt as to the preclusive effect of this litigation on the Partnership can be resolved by protective provisions in the judgment. In sum, this action may well not be derivative but, at all events, the characterization of the suit is immaterial to either Rule 19 or Rule 17. E. Manchester’s Counterclaims Manchester offers one reason for dismissal not relied on by the district court: that the Partnership is an indispensable party to" }, { "docid": "9688866", "title": "", "text": "plaintiffs in these cases, and those plaintiffs are now willing and able to proceed. But as the Advisory Committee and courts applying the rule have made clear, Rule 17(a)(3) isn’t a plenary license to fix “pleadings errors” in all cases for all reasons. Rather, the rule “is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Fed.R.Civ.P. 17, Advisory Comm. Notes, 1966 Amend. In fact, as an example of the type of conduct that isn’t covered by the rules, the Advisory Committee offers an example that resembles Mr. Wil-ner’s en masse filing: [Rule 17(a)(3) ] does not mean, for example, that, following an airplane crash in which all aboard were killed, an action may be filed in the name of John Doe (a fictitious person), as personal representative of Richard Roe (another fictitious person), in the hope that at a later time the attorney filing the action may substitute the real name of the real personal representative of a real victim, and have the benefit of suspension of the limitation period. It does not even mean, when an action is filed by the personal representative of John Smith, of Buffalo, in the good faith belief that he was aboard the flight, that upon discovery that Smith is alive and well, having missed the fatal flight, the representative of James Brown, of San Francisco, an actual victim, can be substituted to take advantage of the suspension of the limitation period. Id. (quoted by the District Court’s January 2013 order, Doc. 925, at 9-10). Plaintiffs’ counsel dismiss the Advisory Committee’s hypothetical as “imperfect” and “inapt” because Mr. Wilner didn’t file suit on behalf of fictitious people—he had names. Appellant Br. in 13-10839, at 32. They fail to grapple with the broader point: that Rule 17 was not promulgated to allow lawyers to file placeholder actions (Mr. Wilner called them “protective filings”) to keep a limitations period open while they investigate their claims and track down the proper parties. If we were to adopt the approach plaintiffs’ counsel propose—and thus" }, { "docid": "22174195", "title": "", "text": "in interest was permissive in purpose: it was designed to allow an assign-ee to sue in his own name. That having been accomplished, the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata. Notes of Advisory Committee on 1966 Amendments to Rule 17. See also U-Haul Int'l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1039 (9th Cir.1986) (“ ‘The modern function of the rule ... is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judica-ta.’ ”) (quoting Advisory Committee Notes to the 1966 amendment of Civil Rule 17). In this regard, most real party in interest inquiries focus on whether the plaintiff or movant holds the rights he or she seeks to redress. See Moore’s, supra, § 17.10[1]. Was, for example, the plaintiff a party to the contract sought to be enforced? Did it have some other interest in the contract? But in some cases, statutory or common law recognizes relationships in which parties may sue in their own name for the benefit of others. In these cases, real party in interest doctrine potentially alters results: it allows these third parties to sue in their own name on actions in which they may not have the ultimate or direct personal stake in the matter. A guardian, for example, may sue on behalf of his or her ward, even though the recovery is solely the ward’s. Civil Rule 17(a)(1)(C). A bail-ee may sue in its own name for damage to goods entrusted to it, even though it does not own them. Civil Rule 17(a)(1)(D). Even assignees for collection may, under certain circumstances, sue in their own name on their assignor’s debt. See Sprint, 554 U.S. at 284, 128 S.Ct. 2531 (dictum); Staggers v. Otto Gerdau Co., 359 F.2d 292, 294 (2d Cir.1966); Kilbourn v. Western Sur. Co.," }, { "docid": "15976876", "title": "", "text": "more to the point. It provides that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the’ real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” An amendment under this rule relates back to the date of initial filing of the action. Plaintiff’s lateness in obtaining and pleading her appointment as executrix is the kind of technical mistake apparently contemplated by Rule 17(a). That impression is confirmed by the Advisory Committee Note accompanying the 1966 amendment adding the quoted sentence. The note refers to cases where “an honest mistake has been made in choosing the party in whose name the action is to be filed, and says that the rule was intended in part “to codify in broad terms the salutary principle” of Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319 (1953). That case involved not a mistake in pleading but the defective appointment of an administrator who had brought a wrongful death action. Here it appears that plaintiff’s attorney made an honest mistake in assuming that plaintiff could maintain the action as an individual. Rule 17(a) applies to this case not by inference or analogy but by its “plain meaning.” There is thus a “direct collision” between the rule and what defendants argue is the New York rule. See Walker v. Armco Steel Corp., 446 U.S. 740, 750 & n. 9, 100 S.Ct. 1978, 1985 & n. 9, 64 L.Ed.2d 659 (1980). In such circumstances the court need not refer to the policies of Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). A valid Federal Rule is controlling if it “cover[s] the point in dispute.” Hanna v. Plumer, 380 U.S. 460, 470, 85 S.Ct. 1136, 1143, 14 L.Ed.2d 8 (1965). There remains the" }, { "docid": "23245182", "title": "", "text": "is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. The purpose of this portion of Rule 17(a) is to prevent forfeiture of an action when determination of the right party to sue is difficult or when an understandable mistake has been made. Note of Advisory Committee on 1966 Amendment to Fed.R.Civ.P. 17; 6 C. Wright and A. Miller, Federal Practice and Procedure, § 1555 (1971). In the present case it is clear that the only party entitled to sue under the Miller Act at the time the Wulffs filed their original complaint was B & K, the subcontractor who had supplied labor and materials to the federal construction project. The Wulffs’ persistent efforts to obtain an assignment from B & K of this claim, efforts which were eventually successful — though untimely — show that the Wulffs were aware that B & K was the real party in interest. Thus, there was no difficulty and no mistake in determining who was the proper party to bring suit. In the Wulffs’ Reply Brief they note that the suit was filed on September 17, 1986 “in order to toll the statute of limitations.” Rule 17(a) does not apply to a situation where a party with no cause of action files a lawsuit to toll the statute of limitations and later obtains a cause of action through assignment. Rule 17(a) is the codification of the salutary principle that an action should not be forfeited because of an honest mistake; it is not a provision to be distorted by parties to circumvent the limitations period. B & K’s assignment to the Wulffs of its claim against CMA cannot ratify the Wulffs’ commencement of suit on a claim which theretofore did not exist. In summary, the Wulffs’ original" }, { "docid": "18394519", "title": "", "text": "Co. v. Perry, 322 F.2d 589 (10th Cir.), cert. denied, 375 U.S. 984, 84 S.Ct. 516, 11 L.Ed.2d 472 (1963). Thus, the action will not necessarily be brought in the name of the person who ultimately benefits from the recovery. Galarza v. Union Bus Lines, Inc., 38 F.R.D. 401 (D.C.Tex.1965), affirmed per curiam, 369 F.2d 402 (5th Cir. 1966); Race v. Hay, 28 F.R.D. 354 (D.C.Ind.1961). The basis for the real party in interest rule was stated by the Advisory Committee in the 1966 Amendment to Rule 17(a) as follows: [T]he modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata. In the instant ease, Reichhold asserts that it is an insured under the policy which had been issued by Travelers to Rogers Cartage. However, Travelers may be correct in its assertion that Reichhold is not the person who will ultimately benefit from a recovery in the instant cause of action. Fed.R.Civ.P. 17(a) does not require an action to be brought in the name of the person who ultimately will benefit from the recovery. It merely requires that the action be brought by the person who, according to the governing substantive law, is entitled to enforce the right. Thus, this Court believes, and does determine, that Reichhold is a real party in interest, in that the right, which Reichhold is attempting to assert against Travelers, is its own. If a judgment is entered against Reichhold at a subsequent juncture, and if the Hartford Insurance Company [Hartford] is thereby subrogated to the rights of Reichhold, this Court would conceivably determine that Reichhold would no longer be a real party in interest, for it is undisputed that (1) when an insurer has paid the full amount of a loss suffered by the insured, the -insurer becomes subrogated to the full extent of the insured’s claim against the one primarily liable for the loss, and (2) in any suit to enforce the" }, { "docid": "17999332", "title": "", "text": "without joining with him the party for whose benefit the action is brought; and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution ch. the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. Fed.R.Civ.P. 17(a) (1982) (emphasis supplied). . In Levinson v. Deupree, 345 U.S. 648, 650, 73 S.Ct. 914, 97 L.Ed.2d 1319 (1953), the Supreme Court held that where a wrongful death action is brought by a party not yet properly appointed as the administrator of the decedent’s estate, and where proper appointment occurs only after the applicable state limitations period has run, a federal court must allow the appointment to \"relate back” to the time of initial filing—even though the forum state would not allow such a \"reía tion back” and would hold the action time barred in its own courts. Hess, 689 F.2d at 981 (emphasis supplied) (discussing Levinson). . The Advisory Committee stated in 1966 that the purposes of adding provisions to allow for relation back when the real party in interest is substituted after the complaint is filed were to \"insure against forfeiture and injustice,” and to \"codify in broad terms the salutary principle of” Levinson. Fed.R.Civ.P. 17 advisory committee's note. . The Eleventh Circuit cited Moore's Federal Practice & Wright and Miller’s Federal Practice and Procedure, both of which emphasized that Rule 17 was designed to allow relation back even when the applicable state law would not. Hess, 689 F.2d at 981 (citing 3A James Wm. Moore et al., Moore's Federal Practice V 17.09 (2d ed. 1982)); Charles Allen Wright & Arthur R. Miller, 6C Federal Practice & Procedure" }, { "docid": "12168455", "title": "", "text": "part that: “Every action shall be prosecuted in the name of the real party in interest. . . . No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” The Advisory Committee made clear in its accompanying Note that the provision allowing ratification, joinder, and substitution “is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” The purpose of this “exception” to the requirement that all actions be prosecuted in the name of the real party in interest is therefore not to create new substantive rights, but to avoid forfeiture in situations in which it is unclear at the time the action is filed who had the right to sue and it is subsequently determined that the right belonged to a party other than the party that instituted the action. See Hobbs v. Police Jury, 49 F.R.D. 176, 180 (W.D.La.1970) (3-judge court); C. Wright & A. Miller, Federal Practice and Procedure § 1555, at 707-08. No difficulty, confusion or mistake ever existed in the present case regarding the identity of the party in whose name the suit must be brought. Section 33(b) was at all relevant times explicit and unequivocal in providing that only the employer-stevedore or its insurer may bring this action after the six-month period has passed, and we had so held in Rodriguez, supra. Del Re and his employer are not merely different parties with the same claim. They are different parties with different claims. Moreover, allowing ratification under Rule 17 would violate 28 U.S.C. § 2072 which provides that federal rules of court “shall not . .. enlarge ... any substantive right.” The term “ratification” implies that" }, { "docid": "8704381", "title": "", "text": "claims, the Court has sought and received letters of ratification from each bank, which permit the action to proceed as if it had been commenced in their names pursuant to Rule 17(a), and moot any question as to who is in fact the real party in interest. Honey v. George Hyman Construction Co., 63 F.R.D. 443, 447—448 (D.D.C.1974); Southern Nat. Bank of Houston, Tex. v. Tri Financial Corp., 317 F.Supp. 1173, 1187 (S.D.Texas 1970). By consenting to the conduct of the suit by Clarkson on their behalf, agreeing to be bound by the outcome, and further agreeing to be bound by the Federal Rules of Civil Procedure for purposes of discovery in the action, the banks have more than satisfied the modern function of Rule 17(a), “to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.” Notes of Advisory Committee on Rules, Fed.R.Civ.P. 17(a), 1966 Amendment. Indeed, they have eliminated every item of prejudice flowing from their absence complained of by Rockwell. Ratification, though rare, is an entirely proper method of resolving controversies over real parties in interest. See Urrutia Aviation Enterprises, Inc. v. B. B. Burson & Assoc., Inc., 406 F.2d 769 (5 Cir. 1969); Honey v. George Hyman Construction Co., supra, 63 F.R.D. at 447—448; Pace v. General Electric Company, 55 F.R.D. 215, 219 (W.D.Pa.1972); Southern Nat. Bank of Houston, Tex. v. Tri Financial Corp., supra, 317 F.Supp. at 1187-1188; C. Wright & A. Miller, Federal Practice and Procedure § 1555, at 709 (1971). As defendant has pointed out, this portion of the rule is not intended to validate claims filed with no real basis in the hope that a proper party will eventually materialize, but merely “to prevent forfeiture when determination of the proper party is difficult or when an understandable mistake has been made.” Notes of Advisory Committee on Rules, supra. In light of the complexity of the transaction involved, the apparent propriety of the suit under Canadian law, the absence of authority on the point" } ]

[ { "docid": "2582756", "title": "", "text": "Duggins v. Hunt, 323 F.2d 746 (10th Cir.1963); Inland Empire Ins. Co. v. Freed, 239 F.2d 289, 293 (10th Cir.1956), coupled with complex and com prehensive procedures adopted for the liquidation of insolvent insurers pursuant to the provisions of the McCarran-Ferguson Act, most federal courts have declined to exercise jurisdiction in disputes like this one which present themselves in the larger context of state liquidation proceedings. See Corcoran v. Ardra Ins. Co., Ltd., 842 F.2d 31 (2d Cir.1988) (upheld remand of action brought by New York Superintendent of Insurance against reinsurers to state court); Law Enforcement Insurance Co., Ltd. v. Corcoran, 807 F.2d 38, 42-44 (2d Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1896, 95 L.Ed.2d 503 (1987). (Even though federal court could make “a declaration of rights to property being administered by another [court]” without “any unseemly interference on the part of the federal courts in state court proceedings,” such a determination should not be “wrenched from the context in which the state court acted, the context of a unified administrative/judicial proceeding.”); Levy v. Lewis, 635 F.2d 960 (2d Cir.1980) (dismissal of federal court suit appropriate in context of state insurance liquidation proceedings); Cummings Wholesale Elec. Co., Inc. v. Home Owners Ins. Co., 492 F.2d 268 (7th Cir.), cert. denied, 419 U.S. 883, 95 S.Ct. 149, 42 L.Ed.2d 123 (1974) (same); Aims Enterprises, Inc. v. Muir, 609 F.Supp. 257, 260-63 (M.D.Pa.1985) (same); Metropolitan Life v. Board of Directors of Wis. Ins. Sec. Fund, 572 F.Supp. 460, 472-73 (W.D.Wis.1983) (same); In Re Matter Of All-Star Ins. Corp., 484 F.Supp. 623, 624-26 (E.D.Wis.1980) (Despite the existence of jurisdiction, district court remanded suit seeking a declaration of rights in asset of insurance company in liquidation.); Mathias v. Lennon, 474 F.Supp. 949 (S.D.N.Y.1979) (dismissal of federal action in defer-enee to a state liquidation proceeding); Meicler v. Aetna Casualty & Sur. Co., 372 F.Supp. 509 (S.D.Tex.1974), aff'd, 506 F.2d 732 (5th Cir.1975) (same). Of course, even when states formulate comprehensive schemes for insurance regulation and liquidation, federal courts may properly exercise their jurisdiction in some cases. A number of factors are relevant to" } ]

[ { "docid": "20382036", "title": "", "text": "of a federal lawsuit. Because the meaning of Section 939 was not determinative of the question at hand, the Commissioner’s motives for the issuance of the Order, “[t]his appeal frames no ‘difficult question[] of state law1 bearing on significant public policy as would prompt [Burford ] abstention.” Fragoso, 991 F.2d at 883 (quoting NOPSI, 491 U.S. at 361, 109 S.Ct. 2506). Second, because the district court was not called upon to decide any issues of Puerto Rico insurance law, it cannot be said that the exercise of federal review in this case would be “disruptive of state efforts to establish a coherent policy” under its regulatory scheme. Moreover, as we explained in Fragoso, Burford is normally implicated only “when the federal courts are asked to interfere with state processes by reviewing the proceedings or orders of state administrative agencies.” Fragoso, 991 F.2d at 883 (holding that district court was not required to abstain in malpractice suit against insolvent insurer because federal case would not interfere with Puerto Rico’s efforts to create a coherent framework for liquidation of insolvent insurance companies). For example, in Burford itself, the Supreme Court abstained when it was called upon to review a state railroad commission’s order allocating oil drilling rights. Id. In contrast, in this case, the district court was “not being asked to review the actions or decisions of any state body, be it judicial or administrative.” Id. Exercising jurisdiction did not require the court to weigh in on the merits of the Commissioner’s Order or to interfere with the OIC’s authority to develop and enforce whatever insurance regulations it saw fit. It merely enjoined the exercise of that authority, where it was established that OIC officials carried out their functions in enforcing the insurance code in a constitutionally impermissible manner. Doing so was thus not disruptive of Puerto Rico’s authority to establish a coherent insurance scheme. Because exercising federal review in this case neither required resolving difficult questions of state law nor hampered Puerto Rico’s ability to establish a coherent insurance scheme, the district court properly denied Burford abstention. B. Qualified Immunity Defendants" }, { "docid": "7044075", "title": "", "text": "of insurance.” In Fabe, after reviewing relevant precedent, the Court concluded that a state statute “regulate[s] the business of insurance only to the extent that it protect[s] policyholders.” Id. at 509 n. 8, 113 S.Ct. 2202. I recognize that the interests of policyholders are indirectly implicated by any claims on the assets of insolvent insurers by potential creditors. Emphasizing the “narrowness of our actual holding,” id., however, the Fabe Court cautioned against defining all such indirect connections as pertaining to the “business of insurance” under McCarran-Ferguson. “This argument, however, goes too far: ‘But in that sense, every business decision made by an insurance company has some impact on its reliability ... and its status as a reliable insurer.’ Royal Drug rejected the notion that such indirect effects are sufficient for a state law to avoid pre-emption under the McCarran-Ferguson Act.” Id. at 508-09, 113 S.Ct. 2202 (quoting Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 216-17, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979)). The facts before us are not related to the business of insurance as defined in Fabe. I disagree with the majority’s adoption of Munich Amer. Reins. Co. v. Crawford, 141 F.3d 585 (5th Cir.1998) to the extent that Munich imposes a per se rule of reverse preemption of federal enforcement of all arbitration agreements against an insurance company in insolvency proceedings. Fabe requires the examination of individual provisions of an insurance liquidation statute to determine which of those provisions specifically protect policyholders. See Fabe, 508 U.S. at 508-10, 113 S.Ct. 2202 (finding reverse preemption of federal priority statute with respect to policyholders, but not with respect to other creditors); see also Garcia v. Island Program Designer, Inc., 4 F.3d 57, 62 (1st Cir.1993) (Breyer, C.J.) (finding no reverse-preemption of filing-deadline provision of Puerto Rico insurance insolvency statute because provision “cannot be said to directly ‘regulate[] policyholders,’ for it is neither directed at, nor necessary for, the protection of policyholders, as the [Fabe ] Court required. The provision helps policyholders only to the extent that (and in the same way as) it helps" }, { "docid": "13396791", "title": "", "text": "and gas contracts did not impair existing contractual obligations between an oil company and a public utility. 459 U.S. at 416, 103 S.Ct. at 707. The Court found that because the parties were operating in a heavily regulated industry, and could readily foresee future regulation involving the subject matter of their contract, their expectations under the contract were not significantly affected. Id. The parties here were also in a heavily regulated context. Insurance companies in Puerto Rico operate under the highly detailed and comprehensive Insurance Code of Puerto Rico. 26 L.P.R.A. § 201 et seq. Among its numerous and extensive provi sions, the Code permits the Insurance Commissioner to liquidate insolvent insurance companies and establish procedures for the resolution of claims against the company. 26 L.P.R.A. §§ 4002, 4008, 4019. The breadth of Puerto Rico’s regulation of the insurance industry was acknowledged in Gonzalez v. Media Elements, Inc., 946 F.2d 157 (1st Cir.1991) (“Puerto Rico has constructed a comprehensive framework for the liquidation of insolvent insurance companies and the resolution of claims against them.”); see also Garcia v. Island Program Designer, 791 F.Supp. 338, 341, rev’d on other grounds, 4 F.3d 57 (1st Cir.1993) (noting that the Puerto Rico insurance scheme is “an intricate and highly specialized administrative system, adopted by the Commonwealth of Puerto Rico to regulate the life of insurance companies from incorporation to dissolution.... [It] provides a comprehensive program for the rehabilitation and liquidation of domestic insurance companies....”). Dr. Fernandez was aware, when he contracted with PCFA for medical malpractice insurance, that the subject matter of the contract might well undergo further regulation, including potential cancellation of the contract in the event of PCFA’s insolvency. See Veix v. Sixth Ward Bldg. & Loan Ass’n, 310 U.S. 32, 38, 60 S.Ct. 792, 795, 84 L.Ed. 1061 (1940) (noting that when one “purchase[s] into an enterprise already regulated in the particular to which he now objects, he purchased] subject to further legislation upon the same topic.”). Just as the legislature created PCFA because of an insurance crisis, it was reasonable to expect that the legislature could terminate PCFA’s existence" }, { "docid": "21466332", "title": "", "text": "Puerto Rico, acting as liquidator of an insolvent insurer, regarding ownership of a certificate of deposit. See Advanced Cellular, 235 B.R. at 715-17. The debtor sought turnover of the certificate of deposit pursuant to §§ 542 and 543 of the Bankruptcy Code. The Puerto Rico insurance commissioner contended the McCarran-Ferguson Act reverse preempted the bankruptcy court from making a decision regarding the ownership of the asset in light of the liquidation proceeding in Puerto Rico. As a threshold matter, the bankruptcy court determined the question of whether the debt- or had a property right over the certificate of deposit was an issue to be addressed in the Puerto Rico liquidation proceedings. Id. at 724. On this basis, the court held its own determination of property rights would “impair” Puerto Rico’s insurance statutes granting exclusive jurisdiction over insurance delinquency proceedings to Puerto Rico courts, enjoining actions against the insurer or liquidator “in Puerto Rico or elsewhere,” and the orderly liquidation of the insolvent insurer. Id. at 724-25. In Amwest, the Bankruptcy Court faced the question of whether it had jurisdiction over a tax allocation agreement consisting of approximately $2.75 million in tax refunds already subject to a pending liqui dation proceeding in the state of Nebraska. The Court concluded if it were to exercise its jurisdiction and decide the tax allocation agreement, its decision would likely impair the progress of the liquidation proceeding in Nebraska. See Am-west, 285 B.R. at 455. Other cases, however, suggest a federal court’s ordinary determination of property rights, interpretation of contracts, or interpretation of state statutes does not “impair” state law, even when a federal court’s decision has a financial impact on the insolvent insurer’s estate. See AmSouth, 386 F.3d at 784 (federal court’s consideration of liquidator’s action to recover debt from third-party would not impair state liquidation scheme); Gross v. Weingarten (Gross), 217 F.3d 208, 222 (4th Cir.2000) (diversity jurisdiction over claims for exoneration, contribution, and indemnification would not impair state’s exclusive jurisdiction over insurance liquidation); Suter v. Munich Reins. Go., 223 F.3d 150, 161 (3rd Cir.2000) (federal arbitration of contract rights pursuant to international" }, { "docid": "5934749", "title": "", "text": "which the Commissioner relies states in pertinent part that “no action at law or equity shall be brought against the insurer or liquidator, whether in Puerto Rico or elsewhere, nor shall any such existing actions be maintained or further presented after issuance [of a liquidation order].” . Prior to NOPSI, the Third Circuit considered whether Burford abstention is appropriate when a \"court is not being asked to provide equitable relief.” Lac D’Amiante Du Quebec v. American Home Assurance Co., 864 F.2d 1033, 1044 (3d Cir.1988). In rejecting the proposition that Bur-ford abstention may turn on the type of relief sought, the court noted that the Supreme Court’s discussion of Burford abstention in Colorado River \"failed to mention the relevancy of equitable relief.” Id. But, the NOPSI Court specifically described the doctrine as one available to \"a federal court sitting in equity.” 491 U.S. at 361, 109 S.Ct. at 2514. Because we believe that this reference cannot be dismissed as language languorously loosed, we conclude that the NOPSI Court’s distillation of Burford abstention shines a different light on this issue. We note, moreover, that the Third Circuit, in NOPSI's wake, seems similarly inclined. See University of Md. v. Peat Marwick Main & Co., 923 F.2d 265, 271-72 (3d Cir.1991). . The estates of insolvent insurance companies are exempt from the operation of the federal bankruptcy laws. See 11 U.S.C. § 109(b)(2) (1988). Thus, the Puerto Rico Insurance Code fashions a format for regulating insurers’ insolvencies, rehabilitations, and liquidations, centralizing proceedings into a single court analogous to a federal bankruptcy court wherein the Commissioner, as an agent of the court, functions as a receiver. See P.R.Laws Ann. tit. 26, § 4008 (1976). . In Media Elements, no one opposed the request for abstention. We granted it by summary order, without extensive analysis. . This view is neither original nor exclusive to us. See Erwin Chemerinsky, Federal Jurisdiction 111-12 (Supp.1990) (concluding that NOPSI reins in \"several ... lower court decisions expansively interpreting Burford abstention”). One decision specially mentioned by Professor Chemerinsky is Lac DAmiante, 864 F.2d 1033— a Third Circuit decision on which" }, { "docid": "10537270", "title": "", "text": "ORDER OF COURT We grant the appellee’s motion to dismiss. The appellant did not oppose the motion; moreover, we agree with the ap-pellee that, in the circumstances presented by this case, federal abstention is appropriate under the doctrine of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). By enacting the Uniform Insurers Liquidation Act, 26 L.P.R.A. § 4001 et seq., Puerto Rico has constructed a comprehensive framework for the liquidation of insolvent insurance companies and the resolution of claims against them. Continued federal litigation may disrupt Puerto Rico’s regulatory system in three significant ways: (1) by taking jurisdiction away from the “central administrative forum” in which Puerto Rico’s legislature intended to concentrate all “claims against the corporation being liquidated, a method that promotes the orderly adjudication of same,” Calderon v. Commonwealth Insurance Co., 111 D.P.R. 153 (1981); (2) by forcing the Puerto Rico Insurance Commissioner to dissipate the insolvent insurer’s funds litigating a claim that could be settled more efficiently in the administrative forum; and (3) by creating the risk that Puerto Rico and the federal court will adopt different interpretations of the policy term at issue here, thus defeating the Commonwealth’s interest in a consistent disposition of all claims against the insolvent insurer. See generally Martin Insurance Agency, Inc. v. Prudential Reinsurance Co., 910 F.2d 249 (5th Cir.1990); Lac D’Amiante du Quebec v. American Home Assurance Co., 864 F.2d 1033 (3d Cir.1988); Grimes v. Crown Life Insurance Co., 857 F.2d 699 (10th Cir.1988); Law Enforcement Insurance Co., Ltd. v. Corcoran, 807 F.2d 38 (2d Cir.1986). But see Bilden v. United Equitable Insurance Co., 921 F.2d 822 (8th Cir.1990). Appeal dismissed." }, { "docid": "5934736", "title": "", "text": "court rendered its judgment before the insurance company entered liquidation proceedings, see Bilden, 921 F.2d at 824, the Eighth Circuit held that an appeals court’s decision on the merits would not interfere with the rehabilitator’s control of the insurance company or with the proper operation of the state’s regulatory format. See id. at 826. It is difficult to fault so level-headed an approach. Second, the concerns animating abstention in Media Elements, the one case cited supra where the Burford issue became relevant only on appeal and the court nevertheless abstained, do not apply here. The appeal in Media Elements involved a coverage issue and, therefore, the court reasoned that abstention would lessen the risk of inconsistent coverage interpretations. See Media Elements, 946 F.2d at 157. Fragoso’s appeal, however, requires that we decide a question of law unrelated to coverage. The case is idiocratic and fact-specific. Passing on this appeal could not possibly impair uniformity in the interpretation of CIS’s insurance policies, nor could doing so obstruct the adjudication of claims against CIS in the liquidator’s forum. This is a singularly important difference. See Grimes v. Crown Life Ins. Co., 857 F.2d 699, 704 (10th Cir.1988) (stating that abstention is less desirable where a suit does not require the court to determine issues which are directly relevant to the liquidation proceeding or to state policies), cert. denied, 489 U.S. 1096, 109 S.Ct. 1568, 103 L.Ed.2d 934 (1989). In fact, it seems more likely that processing the appeal, with the result that the district court’s judgment will be affirmed or vacated, would help the Commissioner, for it is totally unclear how the commonwealth forum would resolve the appellate matter, or that it could. The Media Elements panel also observed that compliance with Puerto Rico’s process would reduce the funds which the insurer would have to spend on litigation. See 946 F.2d at 157. Resolving this appeal in the ordinary course, however, would not cost CIS money. The briefs are already filed, and, as previously pointed out, see supra p. 881-82, there is no need for oral argument. Therefore, the concerns that may" }, { "docid": "18622857", "title": "", "text": "third party Defendant was attempted through the Secretary of State of the Commonwealth of Puerto Rico, in accordance with the Puerto Rico Long Arm Statute, Rule 4.7 of the P.R. Rules of Civ.P., 32 L.P.R.A. App. II. The petition for substitute service was grounded on the assertion that the Authority, although not domiciled within this district, has carried business activities in the jurisdiction. On January 12, 1979 the Authority made a special appearance contesting service of process and requesting that the same be quashed. An affidavit by its Managing Director, John R. MacKroth, was submitted in support of third party defendant’s Motion. The third party Plaintiffs, apparently conceding that in personam jurisdiction over the authority cannot be obtained, proceeded to file an amended third party complaint setting forth a direct action against the Authority’s insurer, The Travelers Insurance Company (hereinafter referred to as “the insurer”) pursuant to Section 20.030 of the Insurance Code of Puerto Rico. 26 L.P.R.A. 2003. Service was made upon an officer of the insurer’s claims Department at its office in Santurce, Puerto Rico. The insurer has also challenged the in personam jurisdiction of this Court. Additionally, dismissal of the claims against it is requested on the ground that the complaint fails to state a claim for relief under the direct action statute of Puerto Rico, supra. We rule, at the outset, that the Authority’s challenge to the substitute service of process must be upheld. The Defendants never controverted the facts attested to in the MacKroth’s affidavit. Said sworn statement specifically disclaims each and every one of the factors which would permit substitute service under the Long Arm Statute of Puerto Rico. There is simply no significant connection between the alleged actions of the Authority and the Commonwealth of Puerto Rico as would satisfy the applicable statutory and constitutional prerequisites to the exercise of long arm jurisdiction. See, International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Absent any of those sine qua" }, { "docid": "23669508", "title": "", "text": "has fallen far short of demonstrating that it has no practicable means, other than by discrimination, of collecting a contribution from transient trailers. D. The McCarran-Ferguson Exemption AACA’s last argument, generously construed, is that the McCarran-Ferguson exemption shields any discrimination that might-otherwise be found to infect its fee structure. The McCarran-Ferguson Act, 15 U.S.C. §§ 1011-15, provides that the “business of insurance” is subject to state regulation and taxation, id. § 1012, and Puerto Rico is defined as a state for this purpose. Id. § 1015. Although the statute does not say so in terms, it has been read, where applicable, to negate the dormant Commerce Clause doctrine for state regulation of the “business of insurance” and, perhaps surprisingly, to do so even when the state’s action is discriminatory. Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981). The pertinent question, therefore, is whether Puerto Rico’s accident compensation law, and more specifically the setting of the fees to fund it, should be viewed as the “business of insurance” within the meaning of the McCarran-Ferguson Act. On this issue, the nomenclature used in Puerto Rico’s statute is not consistent but neither is it decisive. The statute in one section does speak of “the cost of this insurance” and the “premium” owing, 9 L.P.R.A. § 2064(1), (3), and the Puerto Rico Insurance Commissioner must “approve” the fee set by the AACA, 9 L.P.R.A. § 2064(3), although the local insurance code generally excepts the AACA from its operation. 26 L.P.R.A. § 107. By contrast, the Puerto Rico Supreme Court has observed that “the AACA is not a regular insurer; it is an administrative agency created by law to mitigate a serious problem in our society_” Mercado Santini v. Superior Court, 1 Offic.Trans.P.R. 723, 730 (1973). In all events, it is settled that the state’s classification does not control in deciding whether an activity is the “business of insurance” under the McCarran-Ferguson Act. SEC v. Variable Annuity Life Ins. Co., 359 U.S. 65, 69, 79 S.Ct. 618, 620, 3 L.Ed.2d 640 (1959)." }, { "docid": "15455511", "title": "", "text": "as soon as a liquidation order is filed, neither the insurance company nor the policy holders exist any longer. All that remains is a statutory receiver and creditors of the insolvent’s estate. The priority provision regulates the relationship between a debtor and its creditors and cannot be described as regulating the “business of insurance”. We concluded that the federal priority statute preempted the state statute. Id.; see also Gordon v. Department of Treasury, 846 F.2d 272 (4th Cir.), cert. denied, 488 U.S. 954, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988); Phillips v. Lincoln Nat’l Health and Cas. Ins. Co., 774 F.Supp. 1297 (D.Colo.1991) (adopting Soward and recognizing that though Colorado has an encompassing regulatory scheme for liquidating insolvent insurers, it does not have a law like Article 74 of the New York insurance code that establishes that the liquidation of insurance companies is the “business of insurance”); but see Fabe v. United States Department of Treasury, 939 F.2d 341 (6th Cir.1991), cert. granted, - U.S. -, 112 S.Ct. 1934, 118 L.Ed.2d 541 (1992) (Ohio insurance liquidation priority statute was state regulation which protected interests of insured and was protected from federal preemption as law which regulates the “business of insurance”). Under Soward, once an insurer becomes insolvent, the state’s interest in exclusive jurisdiction is materially reduced. The arguments for arbitration are persuasive. Although Montana has a comprehensive insurance regulatory scheme, the liquidator is unable to show how arbitration would harm her interests or that the parties did not intend to enforce their arbitration clauses when a party became insolvent. Even if the state retains some interest in the regulation of insolvent insurers, the trend toward arbitration of controversies implicating public policy concerns such as securities and employment paves the way for acceptance of arbitration in the liquidation setting. Our rejection of the McCarran-Ferguson presumption in liquidation proceedings in Soward, 858 F.2d at 455, should extend to the case before us because the liquidator is unable to explain why she is entitled to an advantage that the insolvent company whose position she now occupies did not have. Neither does she articulate" }, { "docid": "15455510", "title": "", "text": "will distribute. The liquidator contends that Montana’s interest in regulating insolvent insurers should outweigh the federal interest in ordering arbitration. Application of the FAA does not impair the liquidator’s substantive remedy under Montana law. Instead it simply requires the liquidator to seek relief through arbitration. The liquidator has presented no evidence that enforcing the arbitration clauses here will disrupt the orderly liquidation of the insolvent insurer. Moreover, she points to no provision in the Montana Insurance Code that prohibits the arbitration of suits involving insolvent insurers. Our decision in State of Idaho ex rel. Soward v. United States, 858 F.2d 445 (9th Cir.1988), cert. denied, 490 U.S. 1065, 109 S.Ct. 2063, 104 L.Ed.2d 628 (1989), further erodes the liquidator’s argument that the state’s interest should outweigh the federal interest in enforcing arbitration clauses. Soward was a creditor priority dispute. Idaho’s Director of Insurance sought a declaratory judgment that the state liquidation scheme prevailed over the federal superpriority statute because it was a regulation of the “business of insurance” under the McCarran-Ferguson Act. We said that as soon as a liquidation order is filed, neither the insurance company nor the policy holders exist any longer. All that remains is a statutory receiver and creditors of the insolvent’s estate. The priority provision regulates the relationship between a debtor and its creditors and cannot be described as regulating the “business of insurance”. We concluded that the federal priority statute preempted the state statute. Id.; see also Gordon v. Department of Treasury, 846 F.2d 272 (4th Cir.), cert. denied, 488 U.S. 954, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988); Phillips v. Lincoln Nat’l Health and Cas. Ins. Co., 774 F.Supp. 1297 (D.Colo.1991) (adopting Soward and recognizing that though Colorado has an encompassing regulatory scheme for liquidating insolvent insurers, it does not have a law like Article 74 of the New York insurance code that establishes that the liquidation of insurance companies is the “business of insurance”); but see Fabe v. United States Department of Treasury, 939 F.2d 341 (6th Cir.1991), cert. granted, - U.S. -, 112 S.Ct. 1934, 118 L.Ed.2d 541 (1992) (Ohio insurance" }, { "docid": "13396790", "title": "", "text": "the second and third prongs of the analysis. As to whether any impairment is substantial, we note that in Contract Clause analysis, the expectations of the parties to the alleged contract play an important role in determining the substantiality of the contractual impairment. Energy Reserves Group v. Kansas Power and Light Co., 459 U.S. 400, 416, 103 S.Ct. 697, 707, 74 L.Ed.2d 569 (the complaining party’s reasonable expectations had not been impaired by a statute, and so the statute did not violate the Contract Clause, although it altered the parties’ obligations). A key factor in determining the parties’ expectations is whether the parties were operating in a heavily regulated industry. Id. at 411, 103 S.Ct. at 704 (“In determining the extent of the impairment, we are to consider whether the industry the complaining party has entered has been regulated in the past.”) (citing Allied Structural Steel Co., 438 U.S. at 242, n. 13, 98 S.Ct. at 2721, n. 13). In Energy Reserves, the Supreme Court held that a Kansas statute imposing certain regulations on oil and gas contracts did not impair existing contractual obligations between an oil company and a public utility. 459 U.S. at 416, 103 S.Ct. at 707. The Court found that because the parties were operating in a heavily regulated industry, and could readily foresee future regulation involving the subject matter of their contract, their expectations under the contract were not significantly affected. Id. The parties here were also in a heavily regulated context. Insurance companies in Puerto Rico operate under the highly detailed and comprehensive Insurance Code of Puerto Rico. 26 L.P.R.A. § 201 et seq. Among its numerous and extensive provi sions, the Code permits the Insurance Commissioner to liquidate insolvent insurance companies and establish procedures for the resolution of claims against the company. 26 L.P.R.A. §§ 4002, 4008, 4019. The breadth of Puerto Rico’s regulation of the insurance industry was acknowledged in Gonzalez v. Media Elements, Inc., 946 F.2d 157 (1st Cir.1991) (“Puerto Rico has constructed a comprehensive framework for the liquidation of insolvent insurance companies and the resolution of claims against them.”); see" }, { "docid": "5934725", "title": "", "text": "laws in question would stymie attempted forum-shopping. Although the Commissioner maintains that a commonwealth court would dismiss the appeal against CIS, the forecasted result is by no means certain. The Insurance Code directs a six-month stay of all proceedings against the insolvent insurer. See P.R.Laws Ann. tit. 26, § 3818, quoted supra note 4. While the Commissioner assumes that P.R.Laws Ann. tit. 26, § 4021(1) mandates dismissal of the appeal, he neither suggests how to reconcile this provision with section 3818 nor explains how an appellate proceeding filed against the insurer before the issuance of a liquidation order comes within the contemplation of section 4021. The first Erie consideration, then, does not favor application of Puerto Rico’s Insurance Code provisions to the instant appeal. For another thing, declining to apply the Commonwealth’s procedural laws here will not advantage Fragoso as compared with similarly, situated, non-diverse plaintiffs. Cf. Erie, 304 U.S. at 74-75, 58 S.Ct. at 820-21. A principal function of the Insurance Code provisions is to allow adequate time for defense preparation and minimize ex pense. Here, additional time is wholly unnecessary; the case was fully briefed prior to the entry of the Liquidation Order and the merits are straightforward, not requiring oral argument. See Fed.R.App.P. 34(a) (providing for eschewal of oral argument where “the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument”); 1st Cir.Loc.R. 34.1(a)(2)(iii) (same). Thus, refusal to remit the action against CIS to the liquidator’s forum or to stay the action against Lopez works no inequity from the standpoint of either preparation or defense costs. What is more, Puerto Rico’s insolvent insurers’ liquidation provisions do not bear in the slightest on the substantive outcome of the appeal. These laws provide a procedure through which claims against the insurer can be resolved and its assets equitably distributed. They do not absolve the insurer of any substantive liability. There is no basis for concluding that this court will reach a result regarding the underlying merits of Fragoso’s appeal that is any different from" }, { "docid": "18981922", "title": "", "text": "v. National Sec., Inc., 393 U.S. 453, 460, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). . Id. . U.S. Dep’t of Treasury v. Fabe, 508 U.S. 491, 509-10, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993) (“Fabe\") (\"By this decision, we rule only upon the clash of priorities as pronounced by the respective provisions of the federal statute and the Ohio Code. The effect of this decision upon the Ohio Code’s remaining priority provisions — including any issue of sever ability — is a question of state law to be addressed upon remand.”). . Lumbermens Reply Br. at 13 (the Second Circuit \"affords preemptive power to state court insurance insolvency systems as a whole,” relying on Stephens). . See Stephens, 66 F.3d at 42 (\"[t]he issue presented on this appeal is whether an anti-arbitration provision in the Kentucky Insurers Rehabilitation and Liquidation Law is enacted for the purpose of regulating the business of insurance and thus preserved by the McCarran-Ferguson Act from preemption by the Federal Arbitration Act ...”) (internal quotation omitted). . Id. at 44. . See also In re MF Global Holdings Ltd., 469 B.R. at 194 n. 17 (analyzing section 3420(a)(1) of the New York Insurance Law for McCarran-Ferguson Act preemption). . The Court finds it beyond dispute that Article XIII as a whole was enacted for the purpose of regulating the business of insurance, and focuses its discussion below on the individual jurisdictional provisions. For example, one of the overarching purposes of the Illinois liquidation provisions is to secure ratable distribution of an insurance company’s assets. Thus, as a whole, the statutory scheme meets the standard for McCarran-Ferguson Act purposes. . Lumbermens Opposition to Jurisdictional Motion at 16-17 (ECF #73) (\"Lumbermens Opp.”) (\"The Rehabilitation Order was entered pursuant to Illinois' comprehensive state insurance regulatory' scheme (see, e.g., 215 111. Comp. Stat. 5/189, /191, /192, as part of which all claims against the insolvent insurer’s estate are to be brought in the rehabilitation court, and all claims are to be paid and distributions made in accordance with the priorities set forth in the Illinois Insurance Code. The Rehabilitation" }, { "docid": "7044076", "title": "", "text": "to the business of insurance as defined in Fabe. I disagree with the majority’s adoption of Munich Amer. Reins. Co. v. Crawford, 141 F.3d 585 (5th Cir.1998) to the extent that Munich imposes a per se rule of reverse preemption of federal enforcement of all arbitration agreements against an insurance company in insolvency proceedings. Fabe requires the examination of individual provisions of an insurance liquidation statute to determine which of those provisions specifically protect policyholders. See Fabe, 508 U.S. at 508-10, 113 S.Ct. 2202 (finding reverse preemption of federal priority statute with respect to policyholders, but not with respect to other creditors); see also Garcia v. Island Program Designer, Inc., 4 F.3d 57, 62 (1st Cir.1993) (Breyer, C.J.) (finding no reverse-preemption of filing-deadline provision of Puerto Rico insurance insolvency statute because provision “cannot be said to directly ‘regulate[] policyholders,’ for it is neither directed at, nor necessary for, the protection of policyholders, as the [Fabe ] Court required. The provision helps policyholders only to the extent that (and in the same way as) it helps all creditors.”). Like the provision at issue in Garcia, a blanket stay of all arbitration proceedings is of general benefit to all creditors and not specifically for the benefit of policyholders. Nor is Munich elearly apposite on its facts to the situation before us. The Munich court considered the enforceability of arbitration clauses in reinsurance contracts which covered losses on claims paid under an insurance policy by the insolvent insurer, contracts which arguably relate with some directness to protecting policyholders. The precise question before the district court below, however, was whether to compel specific performance of the arbitration clause in a stock purchase agreement forming part of a real estate deal. Davister is neither a policyholder of United Republic nor an insurer of United Republic’s policies. The contract to be interpreted is a real estate contract. Though an insurance company, albeit now insolvent, is a party, the contract has no connection to policyholders or their policies. The deliberately narrow holding of Fabe forecloses a scope of reverse preemption so broad that it could encompass the" }, { "docid": "22038281", "title": "", "text": "Justice Blackmun delivered the opinion of the Court. The federal priority statute, 31U. S. C. § 3713, accords first priority to the United States with respect to a bankrupt debtor’s obligations. An Ohio statute confers only fifth priority upon claims of the United States in proceedings to liquidate an insolvent insurance company. Ohio Rev. Code Arm. §3903.42 (1989). The federal priority statute preempts the inconsistent Ohio law unless the latter is exempt from pre-emption under the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U. S. C. § 1011 et seq. In order to resolve this ease, we must decide whether a state statute establishing the priority of creditors’ claims in a proceeding to liquidate an insolvent insurance company is a law enacted “for the purpose of regulating the business of insurance,” within the meaning of § 2(b) of the McCarran-Ferguson Act, 15U.S.C. § 1012(b). We hold that the Ohio priority statute escapes preemption to the extent that it protects policyholders. Accordingly, Ohio may effectively afford priority, over claims of the United States, to the insurance claims of policyholders and to the costs and expenses of administering the liquidation. But when Ohio attempts to rank other categories of claims above those pressed by the United States, it is not free from federal pre-emption under the McCarran-Ferguson Act. I The Ohio priority statute was enacted as part of a complex and specialized administrative structure for the regulation of insurance companies from inception to dissolution. The statute proclaims, as its purpose, “the protection of the interests of insureds, claimants, creditors, and the public generally.” § 3908.02(D). Chapter 3903 broadly empowers the State’s Superintendent of Insurance to place a financially impaired insurance company under his supervision, or into rehabilitation, or into liquidation. The last is authorized when the superintendent finds that the insurer is insolvent, that placement in supervision or rehabilitation would be futile, and that “further transaction of business would be hazardous, financially or otherwise, to [the insurer’s] policyholders, its creditors, or the public.” § 3903.17(C). As liquidator, the superintendent is entitled to take title to all assets, § 3903.18(A); to collect" }, { "docid": "21466331", "title": "", "text": "federal law on “state regulation,” “state policy,” and “state administrative regimes.” See Humana, 525 U.S. at 310, 119 S.Ct. 710. If this Court determines a disputed asset is property of the Debtor’s bankruptcy estate, it cannot also be property of Prime-Guard’s liquidation estate. However, although determinations made by this Court concerning the Debtor’s estate may have an indirect effect on the Commissioner’s ability to liquidate PrimeGuard, the Court finds the mere possibility of interaction between the proceedings does not rise to the level of “impairing” the Hawaii Court Liquidation Proceeding as required by Humana. See Humana, 525 U.S. at 310, 119 S.Ct. 710; see also AmSouth, 386 F.3d 763, 783 (6th Cir.2004) (“impairment does not occur unless the integrity of the core liquidation proceedings is attacked”). Courts have disagreed whether the determination of property rights impairs a state liquidation proceeding. The Commissioner directs the Court’s attention to the Advanced Cellular and Amwest cases. In Advanced Cellular, a Puerto Rico bankruptcy court heard a dispute between a Chapter 11 debtor corporation and the Insurance Commissioner of Puerto Rico, acting as liquidator of an insolvent insurer, regarding ownership of a certificate of deposit. See Advanced Cellular, 235 B.R. at 715-17. The debtor sought turnover of the certificate of deposit pursuant to §§ 542 and 543 of the Bankruptcy Code. The Puerto Rico insurance commissioner contended the McCarran-Ferguson Act reverse preempted the bankruptcy court from making a decision regarding the ownership of the asset in light of the liquidation proceeding in Puerto Rico. As a threshold matter, the bankruptcy court determined the question of whether the debt- or had a property right over the certificate of deposit was an issue to be addressed in the Puerto Rico liquidation proceedings. Id. at 724. On this basis, the court held its own determination of property rights would “impair” Puerto Rico’s insurance statutes granting exclusive jurisdiction over insurance delinquency proceedings to Puerto Rico courts, enjoining actions against the insurer or liquidator “in Puerto Rico or elsewhere,” and the orderly liquidation of the insolvent insurer. Id. at 724-25. In Amwest, the Bankruptcy Court faced the question of" }, { "docid": "5934729", "title": "", "text": "three reasons for questioning whether the doctrine is at all relevant here. In the first place, Burford commands federal courts “sitting in equity” to abjure interference with certain state fora. NOPSI, 491 U.S. at 361, 109 S.Ct. at 2514. Although enjoining an action in deference to a state proceeding is an exercise of equitable power, the case at hand is a tort action. When, as now, the only equitable power a court is asked to exercise constitutes the very act of abstaining under Burford, we think it is highly questionable whether the court is one “sitting in equity” to which Burford abstention might be available. In the second place, NOPSI characterizes Burford abstention as a doctrine shielding “state administrative agencies” from federal court interference. Id. While Puerto Rico’s tailored revision of the Rehabilitation and Liquidation Model Act, see P.R.Laws Ann. tit. 26, §§ 4001-4054, sets in place a “comprehensive framework for the liquidation of insolvent insurance companies and the resolution of claims against them,” Gonzalez v. Media Elements, Inc., 946 F.2d 157, 157 (1st Cir.1991) (per cu-riam), we question whether the scheme creates a state administrative agency, as opposed to a judicial structure, to which deference under Burford may be paid. While the Insurance Code regulates insolvent insurers doing business in Puerto Rico, it is not at all clear that it sets up the functional equivalent of an administrative agency. In the third place, Burford abstention is implicated when the federal courts are asked to interfere with state processes by reviewing the proceedings or orders of state administrative agencies, ergo, the requirement of “timely and adequate state-court review.” NOPSI, 491 U.S. at 361, 109 S.Ct. at 2514. In Burford, for example, the Supreme Court abstained in the face of a demand that it review a state railroad commission’s order allocating oil drilling rights. See Burford, 319 U.S. at 316-17, 63 S.Ct. at 1098-99; see also NOPSI, 491 U.S. at 352-53, 109 S.Ct. at 2509-10 (discussing abstention in the context of a challenge to a ratemaking order); Alabama Public Serv. Comm’n v. Southern Ry. Co., 341 U.S. 341, 342, 71 S.Ct." }, { "docid": "13396792", "title": "", "text": "also Garcia v. Island Program Designer, 791 F.Supp. 338, 341, rev’d on other grounds, 4 F.3d 57 (1st Cir.1993) (noting that the Puerto Rico insurance scheme is “an intricate and highly specialized administrative system, adopted by the Commonwealth of Puerto Rico to regulate the life of insurance companies from incorporation to dissolution.... [It] provides a comprehensive program for the rehabilitation and liquidation of domestic insurance companies....”). Dr. Fernandez was aware, when he contracted with PCFA for medical malpractice insurance, that the subject matter of the contract might well undergo further regulation, including potential cancellation of the contract in the event of PCFA’s insolvency. See Veix v. Sixth Ward Bldg. & Loan Ass’n, 310 U.S. 32, 38, 60 S.Ct. 792, 795, 84 L.Ed. 1061 (1940) (noting that when one “purchase[s] into an enterprise already regulated in the particular to which he now objects, he purchased] subject to further legislation upon the same topic.”). Just as the legislature created PCFA because of an insurance crisis, it was reasonable to expect that the legislature could terminate PCFA’s existence in the event that PCFA did not fulfill its purposes, or a new crisis ensued. This is exactly what transpired, and we do not believe that these events were unforeseeable. Whether or not there is a substantial contractual impairment involved in this case, we find, turning to the fourth part of the Contract Clause analysis, that Act No. 4 was reasonable and necessary to an important public purpose. Although apparently absolute on its face, “[t]he Contract Clause’s prohibition of any state law impairing the obligation of contracts must be accommodated to the State’s inherent police power to safeguard the vital interests of its people.” Energy Reserves, 459 U.S. at 410, 103 S.Ct. at 704. A court’s task is “to reconcile the strictures of the Contract Clause with the ‘essential attributes of sovereign power’ necessarily reserved by the States to safeguard the welfare of their citizens.” United States Trust, 431 U.S. at 20, 97 S.Ct. at 1517 (quoting Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 435, 54 S.Ct. 231, 239, 78 L.Ed. 413" }, { "docid": "459921", "title": "", "text": "the specific provisions of the statute at issue here—vesting exclusive original jurisdiction of delinquency proceedings in the Oklahoma state court and authorizing the court to enjoin any action interfering with the delinquency proceedings—are laws enacted clearly for the purpose of regulating the business of insurance. These provisions give the state court the power to decide all issues relating to disposition of an insolvent insurance company’s assets, including whether any given property is part of the insolvent estate in the first place. Thus, as the Tenth Circuit has recognized, “Oklahoma has not only adopted a comprehensive scheme to oversee the liquidation of insolvent insurers, it has provided a particular court ... to oversee liquidation proceedings. The effect of this provision grants the Oklahoma County District Court a special relationship of cooperation, technical oversight and concentrated review with the Oklahoma Commissioner of Insurance in the process of liquidating insurers.” Grimes, 857 F.2d at 705; see also Lac D’Amiante, 864 F.2d at 1045 (identifying same interests in New York insolvency proceedings). This special relationship contributes markedly to the orderly liquidation or rehabilitation of the insurance company and the adjudication of claims against it. Oklahoma’s policy of placing ultimate control over all issues relating to the insolvency proceedings in a single court is aimed at protecting the relationship between the insurance company and its policyholders. Insurance companies are ineligible for the protections afforded by the federal Bankruptcy Code, see 11 U.S.C. § 109; such protections instead are provided by state laws, which are shielded from federal interference by the McCarran-Ferguson Act. Clark, 105 F.3d at 1051; see also Wolfson v. Mutual Benefit Life Ins. Co., 51 F.3d 141, 147 (8th Cir.1995). The experience of the federal bankruptcy courts, which evidences the importance of consolidating all of the assets of an insolvent company and the claims against those assets in a single forum, supports the legitimacy of the Oklahoma scheme in protecting the interests of policyholders. See Levy v. Lewis, 635 F.2d 960, 964 (2d Cir.1980). In addition to the interests served by orderly adjudication of claims, which we have already discussed, consolidation prevents the" } ]

[ { "docid": "21251239", "title": "", "text": "reported in the return of Mrs. Virginia Luty Cowan for the years 1955, 1956 and 1957. 4. Section 102(a) of the Internal Revenue Code of 1954 contains the provision (as did the comparable section, 22(b) (3), of the 1939 Code, 26 U.S.C.A. § 22(b) (3)) that gross income does not include amounts received as gifts; and the meaning of that provision is not changed by the provisions of section 101 (b) of the 1954 Code. It is clear that the purpose of the latter section of the 1954 Code is to eliminate the requirement (contained in the comparable section, 22(b) (1), of the 1939 Code) that certain employee death benefits must be paid pursuant to a contractual obligation in order for such benefits to qualify for a $5,000 exclusion from gross income. No part of the aforesaid gift to Mrs. Virginia Luty Cowan is, by reason of section 101(b), includible in taxable income; and such gift is not subject to the limitation of the $5,000 exclusion provided in that section. 5. In view of the conclusion in paragraph 4, supra, it becomes unnecessary to consider plaintiff’s allegation that Congress does not have the power under the Sixteenth Amendment to impose a direct and unapportioned tax on amounts received as gifts. U.S.Const., Art. I, Sec. 2, cl. 3; Art. I, Sec. 9, cl. 4; Amendment XVI. 6. This Court is of the opinion that the decision of the courts in Reed v. United States, D.C., 177 F.Supp. 205, as affirmed sub nom. United States v. Reed et al., 6 Cir., 1960, in 277 F.2d 456, is correct. 7. Plaintiff is entitled to recover from defendant for each of the years involved a sum equal to the income tax erroneously and illegally retained and collected by the defendant as the result of the inclusion of $6,250 in taxable income of plaintiff for 1955, $15,000 in taxable income of plaintiff for 1956 and $3,250 of taxable income of plaintiff for the year 1957, together with interest at the rate of six per cent, per annum on the portion retained from the dates of" } ]

[ { "docid": "16856839", "title": "", "text": "v. Commissioner, 1958, 29 T.C. 647, CCH Dec. 22, 801, the widow received for two years “the same salary as received by [her late husband] ... in consideration of past services rendered by” him to the company. (Our italics.) On stipulated facts, the payment was held to be a gift even though the company was allowed a deduction in its income tax returns. The controlling factors were (1) the voluntary nature of the payment (2) made directly to the widow, (3) who performed no services to the corporation, (4) which received no benefit from the payment, (5) the husband having been fully compensated for his services during his lifetime. To the same effect is Estate of Arthur W. Hellstrom v. Commissioner, 1955, 24 T.C. 916, tried on stipulated facts. Judge Rice there said: “In view of the other evidence in the record, we attach no particular significance to the fact that the corporation claimed deductions on its returns for the amount paid to petitioner. We think the principal motive of the corporation in making the payment was its desire to do an act of kindness for petitioner.” See also Haskell v. Commissioner, 14 T.C.M. 788 (1955), and Estate of Albert W. Morse, CCH Dec. 22, 916 (M) (March 31, 1958). Even where the corporation had frequently in the past made payments to widows of deceased officers and executives, the payments have been held to be gifts. Rodner v. United States, D.C.S.D.N.Y.1957, 149 F.Supp. 233. The reasoning of Judge Dimock is persuasive. After noting that Section 22(b) (1)(B), Internal Revenue Code of 1939, exempts from gross income payments up to $5,000 under a contract of an employer providing for payments to a beneficiary of an employee by reason of the death of the employee, he states, at page 237 of 149 F.Supp.: “By those provisions Congress excluded from gross income for income tax purposes the first $5,000 of amounts paid as death benefits to a beneficiary of an employee pursuant to contract. As stated above footnote 1, death benefits paid to a beneficiary pursuant to contract are not exempt as gifts." }, { "docid": "16856840", "title": "", "text": "payment was its desire to do an act of kindness for petitioner.” See also Haskell v. Commissioner, 14 T.C.M. 788 (1955), and Estate of Albert W. Morse, CCH Dec. 22, 916 (M) (March 31, 1958). Even where the corporation had frequently in the past made payments to widows of deceased officers and executives, the payments have been held to be gifts. Rodner v. United States, D.C.S.D.N.Y.1957, 149 F.Supp. 233. The reasoning of Judge Dimock is persuasive. After noting that Section 22(b) (1)(B), Internal Revenue Code of 1939, exempts from gross income payments up to $5,000 under a contract of an employer providing for payments to a beneficiary of an employee by reason of the death of the employee, he states, at page 237 of 149 F.Supp.: “By those provisions Congress excluded from gross income for income tax purposes the first $5,000 of amounts paid as death benefits to a beneficiary of an employee pursuant to contract. As stated above footnote 1, death benefits paid to a beneficiary pursuant to contract are not exempt as gifts. I do not believe that Congress would favor exempting up to $5,000 death benefits paid pursuant to contract but taxing the whole of gratuitous death benefits. If I am right in this thought, the provision in section 22(b)(1)(B) of the Internal Revenue Code of 1939 limiting the $5,000 exemption to death benefits paid under contract was in perfect harmony with the above cited cases which hold gratuitous death benefits to be exempt as gifts. The legislative intention seems to me to have been that all death benefits that were gratuitous should be exempt and all over $5,000 that were paid under contract should be taxable.” It is significant that the Commissioner has recognized the weakness of his position in cases like the one now before us. In light of the unmistakable trend of judicial decisions holding similar payments to be gifts, as noted above, the Commissioner promulgated an Information Release on August 25, 1958. He therein formally announced that the Internal Revenue Service would not litigate, under the Internal Revenue Code of 1939, cases involving" }, { "docid": "17241999", "title": "", "text": "1063-1065 (1955). . In Jaeger Auto Finance Co. v. Nelson, 191 F.Supp. 693 (E.D.Wis.1961), the court found the thin capitalization rationale unpersuasive inasmuch as the taxpayer corporation was a finance company. . If, as counsel for the taxpayer asserted below, the total equity was in round figures $20,000, $30,000, and $50,000, respectively, at the end of the taxable years in question, and if non-shareholder debt (other than that held by the wife, see note 12, infra) is excluded, as the ALI Report of Working Views suggests, the petitioner’s ratios for 1955, 1956, and 1957 would be approximately 7:1, 4.5:1, and 3:1. . Under the circumstances presented in the case at bar, Hilda Frank, who, as we have stated, was the secretary of the corporation and wife of Philip Frank, cannot be considered an outside lender. In substance, the amount advanced to the corporation by the Franks for the debentures came from but one source, the family controlling the corporation. Zephyr Mills, Inc., 18 TCM 794, 799 (1959); aff’d per curiam, 279 F.2d 494 (3 Cir. 1960). See also Hoguet Real Estate Corp., 30 T.C. 580, 599-600 (1960). . See Gilbert v. Commissioner, 248 F.2d 399, 407, 409-410 (2 Cir. 1957), on remand, 17 TCM 29, aff’d 262 F.2d 512 (2 Cir. 1958), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Prudence Securities Corp. v. Commissioner, 135 F.2d 340, 341 (2 Cir. 1943); Gooding Amusement Co., 23 T.C. 408, 418-419 (1954), aff’d, 236 F.2d 159 (6 Cir. 1956), cert. denied, 352 U.S. 1031, 77 S.Ct. 595, 1 L.Ed.2d 599 (1957); Edward T. Janeway, 2 T.C. 197, 202-203 (1943), aff’d, 147 F.2d 602 (2 Cir. 1945); Gloucester Ice & Cold Storage Co., 19 TCM 1015, 1020 (1960), rev’d, 298 F.2d 183 (1 Cir. 1962). . E.g., compare Brake & Electric Sales Corp. v. United States, 2S7 F.2d 426 (1 Cir. 1961), with Gloucester Ice & Cold Storage Co. v. Commissioner, 298 F.2d 183 (1 Cir. 1962); compare Gregg Co. of Del. v. Commissioner, 239 F.2d 498 (2 Cir. 1956), cert. denied, 353 U.S. 946, 77 S.Ct. 825, 1" }, { "docid": "13307196", "title": "", "text": "or on behalf of an employer and are paid by reason of the death of the employee. “(2) Special rules for paragraph (1)— “(A) $5,000 limitation. — The aggregate amounts excludable under paragraph (1) with respect to the death of any .employee shall not exceed $5,000.” . Indeed, in view of many adverse court decisions in cases arising under the 1939 Code, the Internal Revenue Service adopted an administrative policy that “in cases involving voluntary payments to widows by their deceased husbands’ employers * * * it will no longer litigate, under the Internal Revenue Code of 1939, cases involving the taxability of such payments unless there is clear evidence that they were intended as compensation for services, or where the payments may be considered as dividends.” T.I.R. 87, Aug. 25, 1958, CCH 1958 Stand.Eed.Tax Rep. $ 6662. . E. g., Bounds v. United States, 4 Cir., 1958, 262 F.2d 876; Rodner v. United States, D.C.S.D.N.Y.1957, 149 F.Supp. 233; Luntz v. Commissioner, 1958, 29 T.C. 647; Estate of Hellstrom v. Commissioner, 1955, 24 T.C. 916. . 65 Stat. 483. . 26 U.S.C. § 101(b) (1). . It is open to question whether Congress has the power under the Constitution to impose a direct and unapportioned tax on amounts received as gifts. U.S.Const. Art. I, sec. 2, cl. 3; Art. I, sec. 9, cl. 4; Amend. XVI. . 38 Stat. 167. See C. I. R. v. Duberstein, 1960, 363 U.S. 278, 284, 80 S.Ct. 1190, 4 L.Ed.2d 1218. . See H.R.Rep. No. 1337, 83rd Cong., 2d Sess., in 3 U.S.Code, Cong. and Admin. News 41C8 (1954). . C. I. R. v. Duberstein, 1960, 363 U.S. 278, 284, 80 S.Ct. 1190, 4 L.Ed.2d 1218. . D. Ginsberg & Sons, Inc. v. Popkin, 1932, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704. See United States v. Chase, 1890, 135 U.S. 255, 260, 10 S. Ct. 756, 34 L.Ed. 117. . Robertson v. United States, 1952, 343 U.S. 711, 714, 72 S.Ct. 994, 996, 96 L.Ed. 1237, cited with approval in C. I. R. v. Duberstein, 1960, 363 U.S. 278, 285," }, { "docid": "6536194", "title": "", "text": "rule applies when the Commissioner seeks to reduce a jeopardy assessment to judgment. See Becker v. United States, 21 F.2d 1003 (5th Cir. 1927); Crook v. United States, 30 F.2d 917 (5th Cir. 1929); Paschal v. Blieden, 127 F.2d 398 (8th Cir. 1952); 9 Mertens, supra § 49.-218. . But see Janes v. Janes, 51 App.D.C. 267, 278 F. 576 (1922). . Cf. O’Laughlin v. Helvering, 65 App.D.C. 135, 81 F.2d 269 (1935). Our appellants recorded each incoming bet and the bettor’s name on a slip of paper, and transferred the information thereon to so-called “20-line sheets” summarizing the day’s operations. The slips and 20-line sheets were somewhat analogous to the sales memoranda and daily ledger of an ordinary business. Appellants destroyed them. . Stein, 1962 P-H Tax Ct.Mem.Dec. H 62019; Nellis, 24 P-H Tax Ct.Mem. 142 (1955), affirmed, 232 F.2d 890 (6th Cir. 1956). Skowell, 23 T.C. 495 (1954), reversed on other grounds, 238 F.2d 148 (9th Cir. 1956), on remand, 26 P-H Tax Ct.Mem. 85 (1957), reversed on other grounds, 254 F.2d 461 (9th Cir. 1958), on second remand, 29 P-H Tax Ct.Mem. 30 (1960), affirmed, 286 F.2d 245 (9th Cir. 1961); Bickers, 29 P-H Tax CtMem. 491 (1960). . Though appellants have the burden of proof, they need not show the amount that should have been assessed. They need only show that the Commissioner’s assessment was arbitrary and capricious. Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935). . Stein, supra note 5; Nellis, supra note 5. Contra: Showell, supra note 5; Bickers, supra note 5. But see Drews, 25 T.C. 1354 (1956). . Accord: Mesi, 25 T.C. 513 (1955), reversed and remanded on other grounds, 242 F.2d 558 (7th Cir. 1957), affirmed on other grounds sub nom. Commissioner of Internal Revenue v. Sullivan, 356 U.S. 27, 78 S.Ct. 512, 2 L.Ed.2d 559 (1958). Semble: Hackerman, 23 P-H Tax Ct. Mem. 484 (1954), affirmed per curiam, 229 F.2d 959 (6th Cir. 1955). See also Del-santer, 28 T.C. 845 (1957), where the Tax Court approved an estimate based upon an extrapolation of gross wagers" }, { "docid": "12011567", "title": "", "text": "aboard the S.S. Permanente Silver-bow until December 12, 1957. His subsequent employment record was as follows: 1958 S.S. Hawaiian Rancher 4 months 5.5. President Jefferson S.S P & T Explorer 3 months 3% months 1959 S.S. Filmore 3 months 5.5. Hawaiian Trader 3 months 1960 S.S. Matsonia 2% months 5.5. Coast Progress 3%-4 months Ship chartered by Matson 4 months 5.5. Monterey 1 month (December) 1961 S.S. Monterey 1 month (January) . Vaughan v. Atkinson, 369 U.S. 527, 531—534, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Farrell v. United States, 336 U.S. 511, 515-518, 69 S.Ct. 707, 93 L.Ed. 850 (1949); Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528-530, 58 S.Ct. 651, 82 L.Ed. 993 (1938). . Wilson v. United States, 229 F.2d 277, 280 (2d Cir. 1956); Yates v. Dann, 223 F.2d 64, 67 (3d Cir. 1955); Luth v. Palmer Shipping Corp., 210 F.2d 224 (3d Cir. 1954); Koslusky v. United States, 208 F.2d 957, 959 (2d Cir. 1953); Loverich v. Warner Co., 118 F.2d 690, 693 (3d Cir. 1941); Pyles v. American Trading & Prod. Corp., 244 F.Supp. 685, 687 (S.D.Tex.1965); Diniero v. United States Lines Co., 185 F.Supp. 818, 820, 821 (S.D.N.Y.1960); Meirino v. Gulf Oil Corp., 170 F.Supp. 515, 517 (E.D.Pa.1959); Labenz v. National Shipping & Trading Corp., 153 F.Supp. 785, 786 (E.D.Pa.1957). See also Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (by implication); Carleno v. Marine Transport Lines, Inc., 317 F.2d 662, 665 (4th Cir. 1963) (by implication) ; Carlsson v. United States, 252 F.2d 352, 353 (2d Cir. 1958) (dictum). . Brailas v. United States, 79 F.Supp. 963 (S.D.N.Y.1948); Wilcox v. United States, 32 F.Supp. 947 (S.D.N.Y.1940); The Ball Bros., 35 F.2d 261 (W.D.N.Y.1929). . Two other district court decisious should be noted. In Diaz v. Gulf Oil Corp., 237 F.Supp. 261, 266 (S.D.N.Y.1965), a seaman was awarded maintenance and cure from the last of a series of vessels upon which he suffered asthmatic attacks. This is not a holding that he could not have obtained maintenance and cure from any of his prior maritime employers. Vassos" }, { "docid": "13307198", "title": "", "text": "80 S.Ct. 1190, 4 L.Ed.2d 1218. . S~e Hearings on General Revenue Revision, House Committee on Ways and Means, 83rd Cong., 1st Sess., pp. 363-3S2 (July 14, 1953). . Id. at 374. . H.R.Rep. No. 1337, 83rd Cong., 2d Sess., in 3 U.S.Code, Cong. and Admin. News 4038 (1954). . United States v. Kasynski, 10 Cir., 1960, 284 F.2d 143; Frankel v. United States, D.C.Minn.1961, 192 F.Supp. 776; Cowan v. United States, D.C.N.D.Ga.1960, 191 F.Supp. 703; Reed v. United States, D.C.W.D.Ky.1959, 177 F.Supp. 205, affirmed on opinion below, 6 Cir., 1960, 277 F.2d 456. See also Note, 36 N.Y.U.L.Rev. 693, 711 (1961). Although the Reed case was affirmed on appeal, the Internal Revenue Service bas indicated that it will not be followed as a precedent pending further developments. T.I.R. No. 252, Sept. 12, 1960, CCH 1960 Stand.Fed.Tax Rep. If 6615. . Bounds v. United States, 4 Cir., 1958, 262 F.2d 876, 878 note 2; Rodner v. United States, D.C.S.D.N.Y.1957, 149 F.Supp. 233, 237. . Colby v. Klune, 2 Cir., 1949, 178 F.2d 872, 873; Walling v. Richmond Screw Anchor Co., 2 Cir., 154 F.2d 780, 784, certiorari denied 1946, 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640. . The stipulated facts relied upon by the Government are merely items of varying degrees of importance. E. g.: tax treatment of payment by corporation, C. I. R. v. Duberstein, 1960, 363 U.S. 278, 287-288, 80 S.Ct. 1190, 4 L.Ed.2d 1218; Bounds v. United States, 4 Cir., 1958, 262 F.2d 876; making of gift of corporate assets, C. I. R. v. Duberstein, supra; denominating payments as “compensation,” Bounds v. United States, supra. But see Estate of Pierpont v. Commissioner, 1960, 35 T.C. 65; identity between the sum voted and decedent’s salary, without reference to widow’s individual needs, Estate of Hellstrom v. Commissioner, 1955, 24 T.C. 916. See United States v. Kasynski, 10 Cir., 1960, 284 F.2d 143. Those stipulated facts stressed by taxpayer are given somewhat greater weight by the courts, but are still only factors in the overall picture. Duntz v. Commissioner, 1958, 29 T.C. 647, 650; Estate of Hellstrom v." }, { "docid": "14569378", "title": "", "text": "as estimated income tax for any taxable year shall be deemed to have been paid on the last day prescribed for filing the return under section 6012 for such taxable year (determined without regard to any extension of time for filing such return). . Ordinarily, estimated tax payments are made by individuals according to the following schedule: Date of check Deemed payment date April 18, year 1 April 15, year 2 June 15, year 1 April 15, year 2 September 15, year 1 April 15, year 2 January 15, year 2 April 15, year 2 . Budd v. United States, 252 F.2d 456 (3d Cir. 1957); Binder v. United States, 590 F.2d 68 (3d Cir.1978); Charles Leich & Co. v. United States, 329 F.2d 649, 165 Ct.Cl. 127 (1964). . Dowell v. Commissioner, 41 T.C.M. (CCH) 390 (aff'd in 10th Cir. in an unpublished opinion); Draper v. Commissioner, 32 T.C. 545 (1959); Fortugano v. Commissioner, 41 T.C. 316 (1963), aff'd, 353 F.2d 429 (3d Cir.1965); Northern Natural Gas Co. v. United States, 354 F.2d 310, 173 Ct.Cl. 881 (1965); Moskowitz v. United States, 285 F.2d 451, 152 Ct.Cl. 412 (1961); Richardson v. Smith, 301 F.2d 305 (3d Cir.1962); Hill v. United States, 263 F.2d 885 (3d Cir.1959); Rose v. United States, 256 F.2d 223 (3d Cir.1958); Binder, supra. . Colt’s Manufacturing Co. v. Commissioner, 306 F.2d 929 (2d Cir.1962); Ewing v. United States, 914 F.2d 499 (4th Cir.1990); Ameel v. United States, 426 F.2d 1270 (6th Cir.1970); United States v. Miller, 315 F.2d 354 (10th Cir.1963). . Thomas v. Mercantile Nat’l Bank at Dallas, 204 F.2d 943 (5th Cir.1953); Ford, Jr., et al. v. United States, 618 F.2d 357 (5th Cir.1980); Plankinton v. United States, 267 F.2d 278 (7th Cir.1959); United States v. Dubuque Packing Co., 233 F.2d 453 (8th Cir.1956); Estate of Goetz v. United States, 286 F.Supp. 128 (W.D.Mo.1968). . The statute involved in Rosenman was 25 U.S.C. § 910 (1939). That provision is now 26 U.S.C. § 6511(a) (1990). 26 U.S.C. § 6511(b)(2)(A) was amended in 1958 to reflect its current language. . § 322(b)(1) provides that" }, { "docid": "19227265", "title": "", "text": "death— “(1) the possession or enjoyment of, or the right to the income from, the property, or * * . See copy of the deed reproduced in part at note 1. . Annot., 30 A.L.R. 1059, citing, inter alia, Irvine v. Greever, 32 Grat. (73 Ya.) 411 (1879), and other Virginia cases to the same effect . Markovits, The Fate of Inter Vivos Transfers Under Internal Revenue Code Section 2036, 7 The Tax Counselor’s Quarterly 395 (1963). . Estate of Harter v. United States, 48 AFTR 1964 (N.D.Okla.1954). . 1939 Predecessor to Section 2036. . Estate of McNichol v. Commissioner, 29 T.C. 1179 (1958), aff’d 265 E.2d 667 (3d Cir. 1959), cert. denied 361 U.S. 829, 80 S.Ct. 78, 4 L.Ed.2d 71 (1959). . Greene v. United States, 237 F.2d 848 (7th Cir. 1956) held the trust in decedent’s gross estate as the beneficiaries were bound under contract to pay for life the income to the settlor. . 197 F.Supp. 726 (E.D.Pa.1961), aff’d, 316 F.2d 517 (3d Cir. 1963). . 197 F.Supp. 729. . See note 2. . 4 T.C.M. 1054 (1945). . 6 T.C.M. 1271 (1947). . 17 T.C. 409 (1951). . Markovits, supra, at 401. . At least as of 1963, the date of publication. . United States v. Estate of Ladd, Civil 5064 (W.D.Tenn., October 26, 1964), unreported opinion." }, { "docid": "20980829", "title": "", "text": "the foregoing. Defendant may have an exception. . “(a) General Rule. — Gross income does not include the value of property acquired by gift, bequest, devise, or inheritance.” . “(1) General Rule. — Gross income does not include amounts received (whether in a single sum or otherwise) by the beneficiaries or the estate of an employee, if such amounts are paid by or on behalf of an employer and are paid by reason of the death of the employee. “ (2) Special Rules for Paragraph (D— “(A) $5,000 Limitation. — The aggregate amounts excludible under paragraph (1) with respect to the death of any employee shall not exceed $5,000.” . Int.Rev.Code of 1939, Sec. 22(b) (2), 26 U.S.C.A. § 22(b) (2). . T.I.R.-87, August 25, 1958. 4. . The $5,000 exclusion limit was not included in tbe 1939 Code. . Int.Rev.Code of 1954, Sec. 101(b). . Reed v. United States, D.C.Ky., 177 F. Supp. 205; Cowan v. United States, D.C. N.D.Ga., 191 F.Supp. 703. . Bounds v. United States, 4 Cir., 262 F. 2d 876; Rodner v. United States, D.C., S.D.N.Y., 149 F.Supp. 233. . Chicago, St. Paul, Minneapolis & Omaha Ry. Co. v. Kelm, D.C.Minn., 104 F.Supp. 745, 747 (affirmed 8 Cir., 206 F.2d 831), and cases cited in footnotes. . Consolidated with Stanton v. United States in the decision. Although the facts in both of these cases involved alleged gifts to living persons by an employer, the Court has painstakingly set out the factors determinative of a gift within the meaning of the statute. . Internal Revenue Code of 1939, Sec. 22(b) (3). . Commissioner of Internal Revenue v. Duberstein, supra; United States v. Kasynski, 10 Cir., 284 F.2d 143, 145." }, { "docid": "13307199", "title": "", "text": "v. Richmond Screw Anchor Co., 2 Cir., 154 F.2d 780, 784, certiorari denied 1946, 328 U.S. 870, 66 S.Ct. 1383, 90 L.Ed. 1640. . The stipulated facts relied upon by the Government are merely items of varying degrees of importance. E. g.: tax treatment of payment by corporation, C. I. R. v. Duberstein, 1960, 363 U.S. 278, 287-288, 80 S.Ct. 1190, 4 L.Ed.2d 1218; Bounds v. United States, 4 Cir., 1958, 262 F.2d 876; making of gift of corporate assets, C. I. R. v. Duberstein, supra; denominating payments as “compensation,” Bounds v. United States, supra. But see Estate of Pierpont v. Commissioner, 1960, 35 T.C. 65; identity between the sum voted and decedent’s salary, without reference to widow’s individual needs, Estate of Hellstrom v. Commissioner, 1955, 24 T.C. 916. See United States v. Kasynski, 10 Cir., 1960, 284 F.2d 143. Those stipulated facts stressed by taxpayer are given somewhat greater weight by the courts, but are still only factors in the overall picture. Duntz v. Commissioner, 1958, 29 T.C. 647, 650; Estate of Hellstrom v. Commissioner, supra. See Bounds v. United States, supra. . C. I. R. v. Duberstein, 1960, 363 U.S. 278, 286, 80 S.Ct. 1190, 4 L.Ed.2d 1218; Bogardus v. Commissioner, 1937, 302 U.S. 34, 58 S.Ct. 61, 82 L.Ed. 32. . C. I. R. v. Duberstein, 80 S.Ct. 1190, 1197, supra, note 19. . Id. 363 U.S. at page 285, 80 S.Ct. at page 1197. . Ibid. . Simpson v. United States, 7 Cir., 1958, 261 F.2d. 497, certiorari denied 1959, 359 U.S. 944, 79 S.Ct. 724, 3 L.Ed.2d 677. See Bausch’s Estate v. Commissioner, 2 Cir., 1951, 186 F.2d 313; Estate of Russek v. Commissioner, C.C.H.1961 Tax Ct.Mem. ¶ 24,648 (M). . See United States v. Allinger, 6 Cir., 1960, 275 F.2d 421; Packard v. United States, D.C.S.D.N.Y.1959, 179 F.Supp. 508; Estate of Hellstrom v. Commissioner, 1955, 24 T.C. 916. Cf. Bogardus v. Commissioner, 1937, 302 U.S. 34, 42-44, 58 S.Ct. 61, 82 L.Ed. 32. . See Rodner v. United States, D.C.S.D.N.Y.1957, 149 F.Supp. 233. . See Subin v. Goldsmith, 2 Cir., 224 F.2d 753, 758-61," }, { "docid": "13307200", "title": "", "text": "Commissioner, supra. See Bounds v. United States, supra. . C. I. R. v. Duberstein, 1960, 363 U.S. 278, 286, 80 S.Ct. 1190, 4 L.Ed.2d 1218; Bogardus v. Commissioner, 1937, 302 U.S. 34, 58 S.Ct. 61, 82 L.Ed. 32. . C. I. R. v. Duberstein, 80 S.Ct. 1190, 1197, supra, note 19. . Id. 363 U.S. at page 285, 80 S.Ct. at page 1197. . Ibid. . Simpson v. United States, 7 Cir., 1958, 261 F.2d. 497, certiorari denied 1959, 359 U.S. 944, 79 S.Ct. 724, 3 L.Ed.2d 677. See Bausch’s Estate v. Commissioner, 2 Cir., 1951, 186 F.2d 313; Estate of Russek v. Commissioner, C.C.H.1961 Tax Ct.Mem. ¶ 24,648 (M). . See United States v. Allinger, 6 Cir., 1960, 275 F.2d 421; Packard v. United States, D.C.S.D.N.Y.1959, 179 F.Supp. 508; Estate of Hellstrom v. Commissioner, 1955, 24 T.C. 916. Cf. Bogardus v. Commissioner, 1937, 302 U.S. 34, 42-44, 58 S.Ct. 61, 82 L.Ed. 32. . See Rodner v. United States, D.C.S.D.N.Y.1957, 149 F.Supp. 233. . See Subin v. Goldsmith, 2 Cir., 224 F.2d 753, 758-61, certiorari denied, 1955, 350 U.S. 883, 76 S.Ct. 136, 100 L.Ed. 779; Colby v. Klune, 2 Cir., 1949, 178 F.2d 872, 873-74. . Cf. Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464, 468, 469-70; Doehler Metal Furniture Co. v. United States, 2 Cir., 1945, 149 F.2d 130, 135." }, { "docid": "6536195", "title": "", "text": "(9th Cir. 1958), on second remand, 29 P-H Tax Ct.Mem. 30 (1960), affirmed, 286 F.2d 245 (9th Cir. 1961); Bickers, 29 P-H Tax CtMem. 491 (1960). . Though appellants have the burden of proof, they need not show the amount that should have been assessed. They need only show that the Commissioner’s assessment was arbitrary and capricious. Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935). . Stein, supra note 5; Nellis, supra note 5. Contra: Showell, supra note 5; Bickers, supra note 5. But see Drews, 25 T.C. 1354 (1956). . Accord: Mesi, 25 T.C. 513 (1955), reversed and remanded on other grounds, 242 F.2d 558 (7th Cir. 1957), affirmed on other grounds sub nom. Commissioner of Internal Revenue v. Sullivan, 356 U.S. 27, 78 S.Ct. 512, 2 L.Ed.2d 559 (1958). Semble: Hackerman, 23 P-H Tax Ct. Mem. 484 (1954), affirmed per curiam, 229 F.2d 959 (6th Cir. 1955). See also Del-santer, 28 T.C. 845 (1957), where the Tax Court approved an estimate based upon an extrapolation of gross wagers from verifiable records of wages paid employees of a gambling casino. . 26 P-H Tax Ct.Mem. 857 (1957). . Semble: Dean, 24 P-H Tax Ct.Mem. 718 (1955). See also Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). . “The Commissioner’s reconstruction of income will be presumed correct with the burden on the taxpayer to disprove his crude computation.” 2 Mertens, Federal Income Taxation § 12.12 at 40 (1961) (citing authorities). Appellants could also have rebutted the presumption of validity accorded the Commissioner’s assessment by the cash expenditures or by the bank deposit method. See generally, 2 Mertens, Federal Income Taxation § 12.12 (1961). FAHY, Circuit Judge (dissenting). Appellants were partners engaged in operating a gambling enterprise. Deficiency assessments were entered against them for federal income taxes for the years 1948, 1949 and 1950, in the amount of $412,729.87 applicable to Plisco, $309,-740.33 applicable to Baker, and $324,-933.69 applicable to May. With interest the judgments entered on these assessments are, respectively, $614,551.46, $474,397.38, and $497,437.99. There is no satisfactory evidence" }, { "docid": "20980828", "title": "", "text": "* *.” The Court, in its reluctance to offer any further determinative criteria, by implication regards the case law on this point as satisfactory interpretation of the statutes. It is equally clear that the determination of the problem of gift versus compensation in cases of this kind is not affected by the 1954 Code, since Section 102 appeared in the 1939 Code in the same form. Plaintiff at the threshold of the instant case was met with a presumption that the finding of the Commissioner is correct. This I am satisfied has been rebutted and overcome. No flexible legal test can be applied in the determination of what is an excludable gift for income tax purposes; hence, as such cases arise they must stand on their own facts. In my opinion the tax imposed in the case at bar was erroneously assessed and collected. Accordingly, judgment must be, and the same hereby is, granted for plaintiff. It is so ordered. Plaintiff may submit findings of fact, conclusions of law and order for judgment consistent with the foregoing. Defendant may have an exception. . “(a) General Rule. — Gross income does not include the value of property acquired by gift, bequest, devise, or inheritance.” . “(1) General Rule. — Gross income does not include amounts received (whether in a single sum or otherwise) by the beneficiaries or the estate of an employee, if such amounts are paid by or on behalf of an employer and are paid by reason of the death of the employee. “ (2) Special Rules for Paragraph (D— “(A) $5,000 Limitation. — The aggregate amounts excludible under paragraph (1) with respect to the death of any employee shall not exceed $5,000.” . Int.Rev.Code of 1939, Sec. 22(b) (2), 26 U.S.C.A. § 22(b) (2). . T.I.R.-87, August 25, 1958. 4. . The $5,000 exclusion limit was not included in tbe 1939 Code. . Int.Rev.Code of 1954, Sec. 101(b). . Reed v. United States, D.C.Ky., 177 F. Supp. 205; Cowan v. United States, D.C. N.D.Ga., 191 F.Supp. 703. . Bounds v. United States, 4 Cir., 262 F. 2d 876;" }, { "docid": "16856834", "title": "", "text": "the transaction. Where, however, the payment is in every sense voluntary and there is no ensuing benefit to the corporation, the donative intent is apparent. Such is the case here. Undoubtedly, the courts which have treated payments to widows as compensation have been influenced in large measure by the employer’s established practice to provide for widows of deceased executives. See Bausch’s Estate v. Commissioner, 2 Cir., 1951, 186 F.2d 313, 314. This feature distinguishes Simpson v. United States, supra, relied on by the Commissioner, from the instant case. Indeed, Simpson held that the taxpayer’s reliance on Luntz v. Commissioner, 1958, 29 T.C. 647 was unfounded because the employer (in Luntz) had established no pension plan. Also see Fisher v. United States, D.C.Mass.1955, 129 F.Supp. 759, 762, which distinguished Hahn v. Commissioner, 13 T.C.M. 308, CCH Dec. 20, 249 (M) because there “the employee continued to work for the employer until his death, and the payments made to the widow were then considered for the first time.” Yet the Commissioner argues that his position is sustained by the corporation’s characterizing the payments as “additional compensation for services rendered.” While it is true that a party’s description of a transaction is entitled to some weight, it would strain reason to think that by the words chosen here, the true nature of the transaction could be transformed into something completely different. To borrow the words of the Government’s brief, “ * * whether the payments in question represented income or gifts to the taxpayer cannot be answered by mere definitions or categories. Rather, it presents a problem to be decided in the light of all the facts and circumstances showing the intention of the parties, particularly that of the corporation-payor.” Indeed, in several instances the Commissioner himself has been successful in circumventing the payor’s characterization of the transaction. See Wallace v. Commissioner, 5 Cir., 1955, 219 F.2d 855 and Nickelsburg v. Commissioner, 2 Cir., 1946, 154 F.2d 70. In each of these cases, even though the corporation adopted a resolution bestowing a monetary “gift” and even failed to claim an income tax deduction," }, { "docid": "13307197", "title": "", "text": ". 65 Stat. 483. . 26 U.S.C. § 101(b) (1). . It is open to question whether Congress has the power under the Constitution to impose a direct and unapportioned tax on amounts received as gifts. U.S.Const. Art. I, sec. 2, cl. 3; Art. I, sec. 9, cl. 4; Amend. XVI. . 38 Stat. 167. See C. I. R. v. Duberstein, 1960, 363 U.S. 278, 284, 80 S.Ct. 1190, 4 L.Ed.2d 1218. . See H.R.Rep. No. 1337, 83rd Cong., 2d Sess., in 3 U.S.Code, Cong. and Admin. News 41C8 (1954). . C. I. R. v. Duberstein, 1960, 363 U.S. 278, 284, 80 S.Ct. 1190, 4 L.Ed.2d 1218. . D. Ginsberg & Sons, Inc. v. Popkin, 1932, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704. See United States v. Chase, 1890, 135 U.S. 255, 260, 10 S. Ct. 756, 34 L.Ed. 117. . Robertson v. United States, 1952, 343 U.S. 711, 714, 72 S.Ct. 994, 996, 96 L.Ed. 1237, cited with approval in C. I. R. v. Duberstein, 1960, 363 U.S. 278, 285, 80 S.Ct. 1190, 4 L.Ed.2d 1218. . S~e Hearings on General Revenue Revision, House Committee on Ways and Means, 83rd Cong., 1st Sess., pp. 363-3S2 (July 14, 1953). . Id. at 374. . H.R.Rep. No. 1337, 83rd Cong., 2d Sess., in 3 U.S.Code, Cong. and Admin. News 4038 (1954). . United States v. Kasynski, 10 Cir., 1960, 284 F.2d 143; Frankel v. United States, D.C.Minn.1961, 192 F.Supp. 776; Cowan v. United States, D.C.N.D.Ga.1960, 191 F.Supp. 703; Reed v. United States, D.C.W.D.Ky.1959, 177 F.Supp. 205, affirmed on opinion below, 6 Cir., 1960, 277 F.2d 456. See also Note, 36 N.Y.U.L.Rev. 693, 711 (1961). Although the Reed case was affirmed on appeal, the Internal Revenue Service bas indicated that it will not be followed as a precedent pending further developments. T.I.R. No. 252, Sept. 12, 1960, CCH 1960 Stand.Fed.Tax Rep. If 6615. . Bounds v. United States, 4 Cir., 1958, 262 F.2d 876, 878 note 2; Rodner v. United States, D.C.S.D.N.Y.1957, 149 F.Supp. 233, 237. . Colby v. Klune, 2 Cir., 1949, 178 F.2d 872, 873; Walling" }, { "docid": "16856838", "title": "", "text": "to” her late husband; Nixon v. United States, 57-2 USTC, Paragraph 9982 (E.D.Tenn., 1957), not allowing the corporation’s deduction of the payments to “affect the rights of the widow.” In Hahn v. Commissioner, 13 T.C.M. 308, CCH Dec. 20, 249 (M) (1954), where the facts were stipulated, the corporation resolved “That, in recognition of Mr. E. E. Hahn’s long service with the Company his compensation continue to be paid to his widow through 1951.” (Our italics.) Regarding the company’s deduction of the payments as a salary expense, the Tax Court said: “ * * * we do not think that such evidence should be accorded as much weight in determining the board’s intention as those circumstances that form the basis of our opinion.” The payments were held to be gifts because the husband had been fully compensated during his lifetime, thereby rendering the payments voluntary; the payments were made directly to the widow and not to the estate; and “the occasion for the payment to the petitioner was the death of her husband.” In Luntz v. Commissioner, 1958, 29 T.C. 647, CCH Dec. 22, 801, the widow received for two years “the same salary as received by [her late husband] ... in consideration of past services rendered by” him to the company. (Our italics.) On stipulated facts, the payment was held to be a gift even though the company was allowed a deduction in its income tax returns. The controlling factors were (1) the voluntary nature of the payment (2) made directly to the widow, (3) who performed no services to the corporation, (4) which received no benefit from the payment, (5) the husband having been fully compensated for his services during his lifetime. To the same effect is Estate of Arthur W. Hellstrom v. Commissioner, 1955, 24 T.C. 916, tried on stipulated facts. Judge Rice there said: “In view of the other evidence in the record, we attach no particular significance to the fact that the corporation claimed deductions on its returns for the amount paid to petitioner. We think the principal motive of the corporation in making the" }, { "docid": "23607960", "title": "", "text": "405 (7th Cir. 1935); Russell v. United States, 260 F.Supp. 493, 499 (N.D.Ill.1966); Winer v. United States, 153 F.Supp. 941 (S.D.N.Y.1957); Estate of Lester v. Commissioner, 57 T.C. 503 (1972) with Gowetz v. Commissioner, 320 F.2d 874 (1st Cir. 1963); Commissioner v. Estate of Shively, 276 F.2d 372, 374 (2d Cir. 1960); Estate of Courtney, 62 T.C. 317 (1974); Estate of Hagmarm v. Commissioner, 60 T.C. 465 (1973), aff’d, 492 F.2d 796 (5th Cir. 1974). Faced with these conflicting views, we have examined the arguments underlying each and conclude that Strauss, Winer and their progeny are more persuasive. . Ithaca Trust is arguably distinguishable from the instant case on the grounds that it dealt with charitable bequests, which are deductible from the gross estate pursuant to a statutory section different from that authorizing deductions for claims against the estate. See Jacobs v. Commissioner, 34 F.2d 233 (8th Cir.), cert. denied, 280 U.S. 603, 50 S.Ct. 85, 74 L.Ed. 647 (1929). This technical distinction, although accurate, fails to explain why deductions for claims against the estate should be computed differently from charitable bequests. The Eighth Circuit, relying on this distinction in Jacobs, provided no indication of why Congress would have intended such an anomolous result. . Jacobs has spawned a line of authority supporting the proposition that post-death events must be taken into account when computing the value of certain and enforceable claims against the estate. See, e.g., Gowetz v. Commissioner, 320 F.2d at 876; Estate of Shively, 276 F.2d at 375; Estate of Hagmann, 60 T.C. at 467-69; Estate of Metcalf, 7 T.C. at 161; John Jacobs v. Commissioner, 34 B.T.A. 594, 596-97 (1936), remanded on stipulation, 95 F.2d 1006 (6th Cir. 1938). . The statute involved in Jacobs, section 403(a)(1) of the Revenue Act of 1921, 42 Stat. 279, c. 136, closely resembled the one now before us, I.R.C. § 2053. . A deduction, for Federal estate tax purposes, will not be allowed for claims against the estate which have not been paid or will not be paid because the creditor waives payment, fails to file his claim within" }, { "docid": "8080890", "title": "", "text": "or the court has found as a matter of fact that the benefit was a mere gratuity bestowed by the employer, for which the employee gave no consideration, Hanner v. Glenn, 111 F.Supp. 52, 57 (W.D.Ky.1953), aff’d, 212 F.2d 483 (6th Cir. 1954); Estate of Saxton v. CIR, 12 T.C. 569, 575 (1949). A gratuity would pass directly from the company to the decedent’s widow; it would not be includable in the employee’s gross estate since it would in no sense have passed to his wife from him. Other cases dealing with pre-1954 law have found employee death benefits to be subject to estate taxation. Estate of Garber v. CIR, 271 F.2d 97 (3d Cir. 1959), dealt with a pension plan, the funds from which were received by the employee during his life, and after death by a beneficiary that had been designated by him. The court held that the funds received by the beneficiaries were includable in Garber’s gross estate under § 811(a) of the Internal Revenue Code of 1939 (the predecessor of § 2033), and laid down the general rule that “death benefits derived from funds which represent deferred compensation to the de ceased, or granted under plans which explicitly [give] the decedent direct contractual rights in the funds” are includable in the decedent’s gross estate. 271 F.2d at 101. Accord, Rosenberg v. United States, 309 F.2d 724 (7th Cir. 1962); Goodman v. Granger, 243 F.2d 264 (3d Cir.), cert. denied, 355 U.S. 835, 78 S.Ct. 57, 2 L.Ed.2d 47 (1957); Estate of Wolf v. CIR, 29 T.C. 441, 447 (1957), rev’d on other grounds, 264 F.2d 82 (3d Cir. 1959). The death benefits in this case appear to represent “deferred compensation” in the sense that they were to be paid in consideration of Porter’s future services. There was further consideration in that, by the reciprocal promise that the companies in which he owned a substantial interest would provide for his brothers’ widows, he incurred a detriment. As noted, petitioners take the position that, since Porter could be discharged at any time, the likelihood that his wife would" }, { "docid": "13307195", "title": "", "text": "motivated by instincts of generosity or other subjective factors, does not necessarily conclude the trier of the fact, who, on the basis of a witness\" manner and appearance in testifying,, might well conclude that the opposite of his sworn assertions is indeed the truth. Were the affidavits drawn to bolster the plaintiff’s position to insure nontax-ability of the payment, or did they in fact express the intent of the directors at the time they voted the resolution? In the light of the facts here presented, this cannot be determined upon affidavits. The matter is not ripe for summary judgment and the respective motions are denied. . Section 102. “Gifts and inheritances. “(a) General rule. — Gross income does not include the value of property acquired by gift, bequest, devise, or inheritance.” . Section 101. “Certain death benefits. ***** “(b) Employees’ death benefits.— “(1) General rule. — Gross income does not include amounts received (whether in a single sum or otherwise) by the beneficiaries or the estate of an employee, if such amounts are paid by or on behalf of an employer and are paid by reason of the death of the employee. “(2) Special rules for paragraph (1)— “(A) $5,000 limitation. — The aggregate amounts excludable under paragraph (1) with respect to the death of any .employee shall not exceed $5,000.” . Indeed, in view of many adverse court decisions in cases arising under the 1939 Code, the Internal Revenue Service adopted an administrative policy that “in cases involving voluntary payments to widows by their deceased husbands’ employers * * * it will no longer litigate, under the Internal Revenue Code of 1939, cases involving the taxability of such payments unless there is clear evidence that they were intended as compensation for services, or where the payments may be considered as dividends.” T.I.R. 87, Aug. 25, 1958, CCH 1958 Stand.Eed.Tax Rep. $ 6662. . E. g., Bounds v. United States, 4 Cir., 1958, 262 F.2d 876; Rodner v. United States, D.C.S.D.N.Y.1957, 149 F.Supp. 233; Luntz v. Commissioner, 1958, 29 T.C. 647; Estate of Hellstrom v. Commissioner, 1955, 24 T.C. 916." } ]

[ { "docid": "23256636", "title": "", "text": "between said side walls beneath the bottom of said trench, and respective fasteners secured to the ends of said tie rods to tension said tie rods, thereby forcing the side walls of said casing toward each other to compressively load said casing. [Emphasis in original to show additions to text, brackets show deletions.] Thus application claim 1 was amended to include the passage limitations of application claims 2 and 11, and was allowed in that form. The amendment was made in view of the prior art; applicant Sluys wrote to the PTO: “During the interview, claims 1, 2 and 11 were discussed in relation to all of the cited references. After the differences between Applicant’s invention and the cited references were pointed out, the Examiners agreed that claim 2 appears allowable if limited to transverse passages opening upwardly at the side of the deck. The Examiners also agreed that claim 11 appears allowable in its present form.” (Further prosecution of application claim 11 resulted in amendments to parts of that claim which are not material here.) The district court concluded that the prosecution history estopped Builders Concrete from interpreting application claim 11 (patent claim 10) to encompass that which was relinquished in the successful argument for patentability of amended claim 1. Although claim 10 is the only claim in suit, the prosecution history of all claims is not insulated from review in connection with determining the fair scope of claim 10. To hold otherwise would be to exalt form over substance and distort the logic of this jurisprudence, which serves as an effective and useful guide to the understanding of patent claims. The fact that the “passage” clause of patent claim 10 was not itself amended during prosecution does not mean that it can be extended by the doctrine of equivalents to cover the precise subject matter that was relinquished in order to obtain allowance of claim 1. It is clear from the prosecution history that the allowance of claim 1, the broadest claim with respect to the other elements of the float, depended on the amendment narrowing its “passage”" } ]

[ { "docid": "3779929", "title": "", "text": "460 F.3d at 1363 (citations omitted). Here, the parties dispute whether Cor-dis’s accused XB catheters have a portion that is equivalent to the “second straight portion” limitation of claim 1 of the '625 patent (i.e., the straight claim) or the “first substantially straight leg” limitation of claims 4 and 5 of the '213 patent and all claims of the '195 patent (i.e., the substantially straight claims). Cordis makes two arguments in support of noninfringement. First, Cordis argues that prosecution history estoppel bars Voda from arguing that the “redesigned curve portion,” see discussion supra Background Section 3, of the XB catheter meets the straight and substantially straight limitations. Second, Cordis argues that the finding of infringement should be overturned because no reasonable jury could find that the redesigned curve portion of its XB catheter is equivalent to the straight or substantially straight limitations. We will address each argument in turn. a. Prosecution History Estoppel This court has explained that “prosecution history estoppel can occur during prosecution in one of two ways, either (1) [when the applicant makes] a narrowing amendment to the claim (‘amendment-based estoppel’) or (2) [when the applicant surrenders] claim scope through argument to the patent examiner (‘argument-based estoppel’).” Conoco, 460 F.3d at 1363 (citations omitted). Here, Cordis argues that both amendment-based estoppel and argument-based estoppel apply to the substantially straight claims of the '213 patent. Under amendment-based es-toppel, “[a] patentee’s decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 740-41, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002) (citations omitted). However, “the patentee can overcome the presumption that prosecution history es-toppel bars a finding of equivalence” by showing: (1) that the equivalent was unforeseeable at the time of the patent application; (2) that the rationale underlying the amendment bore “no more than a tangential relation to the equivalent in question”; or (3) “some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute" }, { "docid": "22542877", "title": "", "text": "previous regime had no reason to believe they were conceding all equivalents. If they had known, they might have appealed the rejection instead. There is no justification for applying a new and more robust estoppel to those who relied on prior doctrine. In Wamer-Jenkinson we struck the appropriate balance by placing the burden on the patentee to show that an amendment was not for purposes of patentability: “Where no explanation is established, however, the court should presume that the patent application had a substantial reason related to patentability for including the limiting element added by amendment. In those circumstances, prosecution history estoppel would bar the application of the doctrine of equivalents as to that element.” Id., at 33. When the patentee is unable to explain the reason for amendment, estoppel not only applies but also “bar[s] the application of the doctrine of equivalents as to that element.” Ibid. These words do not mandate a complete bar; they are limited to the circumstance where “no explanation is established.” They do provide, however, that when the court is unable to determine the purpose underlying a narrowing amendment — and hence a rationale for limiting the estoppel to the surrender of particular equivalents — the court should presume that the patentee surrendered all subject matter between the' broader and the narrower language. Just as Warner-Jenkinson held that the patentee bears the burden of proving that an amendment was not made for a reason that would give rise to estoppel, we hold here that the patentee should bear the burden of showing that the amendment does not surrender the particular equivalent in question. This is the approach advocated by the United States, see Brief for United States as Amicus Curiae 22-28, and we regard it to be sound. The patentee, as the author of the claim language, may be expected to draft claims encompassing readily known equivalents. A patentee’s decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim. Exhibit Supply, 315 U. S., at 136-137 (“By the" }, { "docid": "16251131", "title": "", "text": "express example, any requirement of 35 U.S.C. § 112. Id. at 736, 122 S.Ct. 1831 (emphasis added). As to § 112 requirements, the Court distinguished between “truly cosmetic” amendments under that provision, which did not narrow the scope of the patent or raise an estoppel, and “a § 112 amendment [that] is necessary and narrows the patent’s scope — even if only for the purpose of better description,” to which estoppel “may apply.” Id. at 736-37, 122 S.Ct. 1831. Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 299 F.Supp.2d 903, 916-17 (N.D.Iowa 2004) (footnotes omitted). On remand, the Federal Circuit Court of Appeals explained the Supreme Court’s analytical procedure for determining when prosecution history estoppel bars consideration of “equivalents,” as follows: First, the Court agreed with our holding that “a narrowing amendment made to satisfy any requirement of the Patent Act may give rise to an estoppel.” Festo VIII, 535 U.S. at 736, 122 S.Ct 1831. Second, however, the Court disagreed with our adoption of a complete bar to the doctrine of equivalents when prosecution history estoppel arises. Id at 737, 122 S.Ct. 1831. The Court instead established a presumption that a narrowing amendment made for a reason of patentability surrenders the entire territory between the original claim limitation and the amended claim limitation, and explained that a patentee may overcome that presumption by showing that “at the time of the amendment one skilled in the art could not reasonably be expected to have drafted a claim that would have literally encompassed the alleged equivalent.” Id at 741, 122 S.Ct. 1831. Specifically, the Court enumerated the three ways in which the patentee may overcome the presumption — i.e., by demonstrating [1] that “the equivalent [would] have been unforeseeable at the time of the [amendment],” [2] that “the rationale underlying the amendment [bore] no more than a tangential relation to the equivalent in question,” or [3] that “there [was] some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question.” Id at 740-41, 535 U.S. 722, 122 S.Ct. 1831, 152 L.Ed.2d 944." }, { "docid": "4484719", "title": "", "text": "art or to comply with § 112. We must regard the patentee as having conceded an inability to claim the broader subject matter or at least as having abandoned his right to appeal a rejection. In either case estoppel may apply. Id. at 736-37, 122 S.Ct. 1831 (emphases added). Thus, the fact that the scope of the rewritten claim has remained unchanged will not preclude the application of prosecution history estoppel if, by canceling the original independent claim and rewriting the dependent claims into independent form, the scope of subject matter claimed in the independent claim has been narrowed to secure the patent. This is the rule we have consistently-applied in our post-Festo decisions. First, in Deeñng we held that canceling a broader independent claim and replacing it with a dependent claim rewritten into independent form was a “clear surrender of the broader subject matter” that presumptively barred application of the doctrine of equivalents. 347 F.3d at 1325. There the patentee’s original claim 1 defined a portable scale including a sliding weight that moved along a beam to indicate the weight of a load placed on the opposite end. Id. at 1317. Dependent claim 3 added a “Zero Position Limitation” requiring that the zero position of the sliding weight be “in an imaginary plane containing the fulcrum of the beam.” Id. at 1318-19 (emphasis omitted). Claim 1 was rejected as obvious during prosecution. Id. at 1319. The pat-entees canceled claim 1 and rewrote claim 3 (new application claim 11) in independent form. Id. Following the rule announced by the Supreme Court in Festo, we rejected the argument that the amendment was merely “cosmetic.” Id. at 1326. We held that this was a narrowing amendment because “the patentees clearly disclaimed the territory between the original claim 1 and new claim 1 as issued [application claim 11].” Id. at 1325. Consequently, the “addition of independent claim 11, coupled with the clear surrender of the broader subject matter of the deleted original independent claim presumptively” barred the patentee from arguing equivalents related to the zero position of the sliding weight. Id. So too," }, { "docid": "16251151", "title": "", "text": "to make the patent read on the Donaldson Informer, not to avoid prior art. The court disagrees. The prosecution history recounted above shows that the claims of the original application were rejected as either anticipated by or obvious in light of prior art. Even if the claims of the first amended application were allowable, the inventor canceled those claims, choosing to file a continuation and second amendment in an attempt to make the patent read on the Donaldson Informer. See Festo, 344 F.3d at 1366 (holding, inter alia, “that a ‘voluntary’ amendment may give rise to prosecution history estop-pel”). The second amendment was also rejected in light of prior art, and two other amendments were filed, before the ’456 patent issued. Thus, the record shows that the narrowing amendments to the pertinent limitations were for reasons related to patentability, and prosecution history estoppel applies. At the very least, EPC has failed to overcome the Warner-Jenkinson presumption that the reason for the amendments was patentability, if the record could be deemed to be silent on the reason, which the court finds that it is not. Id. at 1366-67 (“Wfiien the prosecution history record reveals no reason for the narrowing amendment, Warner-Jenkinson presumes that the patentee had a substantial reason relating to patent-ability.”)- iii. Can EPC overcome the presumption of “total surrender”? As the Federal Circuit Court of Appeals explained on remand in Festo, “If ... the court determines that a narrowing amendment has been made for a substantial reason relating to patentability — whether based on a reason reflected in the prosecution history record or on the patentee’s failure to overcome the Warner-Jenkinson presumption — then the third question in a prosecution history estoppel analysis addresses the scope of the subject matter surrendered by the narrowing amendment.” Id. at 1367. Consequently, EPC must overcome the presumption imposed by the Supreme Court’s decision in Festo that EPC “has surrendered all territory between the original claim limitation and the amended claim limitation.” See id. (citing Festo, 535 U.S. at 740, 122 S.Ct. 1831). Although there are three criteria under which EPC can rebut" }, { "docid": "16329372", "title": "", "text": "of Prosecution History Estoppel to Availability of the Doctrine of Equivalents in an Infringement Action . Prosecution history estoppel may bar a patentee from asserting infringement under the doctrine of equivalents: [Tjhere are limits to the application of the doctrine of equivalents aside from the question of insubstantiality of the differences ... [Pjrosecution history es-toppel can prevent a patentee from rely ing on the doctrine of equivalents when the patentee relinquishes subject matter during the prosecution of the patent, either by amendment or argument. Eagle Comtronics, Inc. v. Arrow Commun. Labs., Inc., 305 F.3d 1303, 1315 (Fed.Cir. 2002). There are thus two different kinds of prosecution history estoppel: that based on amendment, and that based on argument. A. Amendment-Based Estoppel The Supreme Court established the standard for amendment-based estoppel in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002)(“Festo VIII”). The basic principle is: “[a] narrowing amendment made to satisfy any requirement of the Patent Act may give rise to an estoppel.” Id. at 736, 122 S.Ct. 1831. A patentee making such an amendment is presumed to have surrendered the territory for purposes of the doctrine of equivalents, and bears the burden of rebutting this presumption. [W]e hold here that the patentee should bear the burden of showing that the amendment does not surrender the particular equivalent in question. The pat-entee, as the author of the claim language, may be expected to draft claims encompassing readily known equivalents. A patentee’s decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim. Id. at 740, 122 S.Ct. 1831. The Court held that there are three ways in which a pat-entee may rebut this presumption: The equivalent may have been unforeseeable at the time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in" }, { "docid": "15067907", "title": "", "text": "an amendment to the claim or in an argument to overcome or distinguish a reference”). In general, prosecution history es-toppel, under either theory, requires that patent claims be interpreted in light of the proceedings before the PTO. Festo II, 535 U.S. at 733, 122 S.Ct. 1831. 1. Amendment-based Estoppel With respect to amendment-based estoppel, “a narrowing amendment made to satisfy any requirement of the Patent Act may give rise to an estoppel.” Id. at 736, 122 S.Ct. 1831. “A patentee’s decision to narrow his claims ... may be presumed to be a general disclaimer of the territory between the original claim and the amended claim.” Id. at 740, 122 S.Ct. 1831. When the patentee originally claimed the subject matter alleged to infringe but then narrowed the claim in response to a rejection, “courts may presume the amended text was composed with awareness of this rule and that the territory surrendered is not an equivalent of the territory claimed. In those instances, however, the patentee must show that at the time of the amendment one skilled in the art could not reasonably be expected to have drafted a claim that would have literally encompassed the alleged equivalent.” Id. at 741, 122 S.Ct. 1831. This can be shown by one of the following three criteria: (1) the equivalent may have been unforeseeable at the time of the amendment; (2) the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or (3) there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. Festo III, 344 F.3d at 1369. As an initial note, the only asserted independent claim that is arguably subject to a narrowing amendment during prosecution is issued claim 1. This claim, filed as claim 11, essentially incorporated original claim 1 and original dependent claim 3. Original claim 9 was not amended during prosecution and issued as independent claim 4 in unamended form. In response to the first Office Action rejecting claim 1 under 35 U.S.C. § 103(a) and objecting to" }, { "docid": "15989267", "title": "", "text": "filed, and thus did not require any amendment to place that claim in condition for allowance. Id. In addressing whether the estoppel resulting from the amendment to claim 1 also applied to claim 10, the court stated: Although claim 10 is the only claim in suit, the prosecution history of all claims is not insulated from review in connection with determining the fair scope of claim 10. To hold otherwise would be to exalt form over substance and distort the logic of this jurisprudence, which serves as an effective and useful guide to the understanding of patent claims. The fact that the “passage” clause of patent claim 10 was not itself amended during prosecution does not mean that it can be extended by the doctrine of equivalents to cover the precise subject matter that was relinquished in order to obtain allowance of claim 1. Id. at 260, 225 USPQ at 243. Thus, the court in Builders held that prosecution history estoppel barred the patentee in that case from asserting equivalence between the accused structure and claim 10 of its patent as a result of the addition of the same “passage” limitation in claim 1 to avoid the prior art. Id. We conclude that the principles espoused in Builders equally apply to a claim limitation that was narrowed in order to obtain allowance of a claim during reexamination, despite the fact that the resulting estoppel may retroactively extend to original, unamended claims, and hold that any estoppel generated by such an amendment applies to all other claims in the patent containing that limitation. To conclude otherwise would be “to exalt form over substance,” id., and subject a limitation to multiple ranges of equivalence depending upon whether or not that limitation was amended in any particular claim, see Am. Permahedge, Inc. v. Barcana, Inc., 105 F.3d 1441, 1446, 41 USPQ2d 1614, 1618 (Fed.Cir.1997) (“[W]e see no reason to assign different ranges of equivalents for the identical term used in different claims in the same patent, absent an unmistakable indication to the contrary.”). Moreover, arguments made to distinguish prior art during reexamination proceedings" }, { "docid": "16251152", "title": "", "text": "reason, which the court finds that it is not. Id. at 1366-67 (“Wfiien the prosecution history record reveals no reason for the narrowing amendment, Warner-Jenkinson presumes that the patentee had a substantial reason relating to patent-ability.”)- iii. Can EPC overcome the presumption of “total surrender”? As the Federal Circuit Court of Appeals explained on remand in Festo, “If ... the court determines that a narrowing amendment has been made for a substantial reason relating to patentability — whether based on a reason reflected in the prosecution history record or on the patentee’s failure to overcome the Warner-Jenkinson presumption — then the third question in a prosecution history estoppel analysis addresses the scope of the subject matter surrendered by the narrowing amendment.” Id. at 1367. Consequently, EPC must overcome the presumption imposed by the Supreme Court’s decision in Festo that EPC “has surrendered all territory between the original claim limitation and the amended claim limitation.” See id. (citing Festo, 535 U.S. at 740, 122 S.Ct. 1831). Although there are three criteria under which EPC can rebut the presumption of “total surrender” of “equivalents,” EPC relies on only the second, “that ‘the rationale underlying the amendment [bore] no more than a tangential relation to the equivalent in question.’ ” Id. at 1365 (quoting Festo, 535 U.S. at 740-41, 122 S.Ct. 1831). As to that criterion, the Federal Circuit Court of Appeals explained, [TJhis criterion asks whether the reason for the narrowing amendment was peripheral, or not directly relevant, to the alleged equivalent. See The American Heritage College Dictionary 1385 (3d ed.1997) (defining “tangential” as “[mjerely touching or slightly connected” or “[o]nly superficially relevant; divergent”); 2 The New Shorter Oxford English Dictionary 3215-16 (1993) (defining “tangential” as “merely touching] a subject or matter; peripheral”). Although we cannot anticipate the instances of mere tangentialness that may arise, we can say that an amendment made to avoid prior art that contains the equivalent in question is not tangential; it is central to allowance of the claim. See Pioneer Magnetics, 330 F.3d at 1357. Moreover, much like the inquiry into whether a patentee can rebut the" }, { "docid": "21359040", "title": "", "text": "as surrendering a particular equivalent. The equivalent may have been unforeseeable at the time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. In those cases the patentee can overcome the presumption that prosecution history es-toppel bars a finding of equivalence. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 740-41, 122 S.Ct. 1881, 152 L.Ed.2d 944 (2002). We review de novo issues relating to the application of prosecution history estoppel. Schwarz Pharma, Inc. v. Paddock Labs., Inc., 504 F.3d 1371, 1375 (Fed.Cir.2007). The district court rejected Glenmark’s argument that the '070 patent applicants surrendered a lecithin-free composition (e.g., Glenmark’s proposed generic product) as an equivalent dining prosecution. During prosecution, the examiner noted that two dependent claims, which recited a lecithin “concentration of up to 1%” and “concentration of up to 3%,” respectively, could include zero lecithin. Applicants responded that those range limitations clearly did not include zero because they “are only in claims dependent on independent claims, which clearly require [lecithin].” J.A. 4386-87 (noting that the examiner’s argument “is not well taken.”). Regardless, applicants amended the two dependent claims to recite a lecithin “concentration of from more than 0 to 1%” and “concentration of from more than 0 to 3%,” respectively, noting that they were “amended to expressly state what has already been made clear on the record.” The district court determined that “taken in context,” the amendments were for clarification purposes, “not to disclaim formulations with zero lecithin.” It noted that Glenmark did not dispute that independent claim 1 always required lecithin, and consequently, both dependent claims also always required lecithin. Glenmark argues that the district court erred in determining that prosecution history estoppel did not apply to bar the doctrine of equivalents. It argues that applicants expressly disavowed and disclaimed formulations without lecithin. We see no error in the district court’s analysis. The district court correctly determined that" }, { "docid": "22542879", "title": "", "text": "amendment [the patentee] recognized and emphasized the difference between the two phrases and proclaimed his abandonment of all that is embraced in that difference”). There are some cases, however, where the amendment cannot reasonably be viewed as surrendering a particular equivalent. The equivalent may have been unforeseeable at the. time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. In those cases the patentee can overcome the presumption that prosecution history estoppel bars a finding of equivalence. This presumption is not, then, just the complete bar by another name. Rather, it reflects the fact that the interpretation of the patent must begin with its literal claims, and the prosecution history is relevant to construing those claims. When the patentee has chosen to narrow a claim, courts may presume the amended text was composed with awareness of this rule and that the territory surrendered is not an equivalent of the territory claimed. In those instances, however, the patentee still might rebut the presumption that estoppel bars a claim of equivalence. The patentee must show that at the time of the amendment one skilled in the art could not reasonably be expected to have drafted a claim that would have literally encompassed the alleged equivalent. IV On the record before us, we cannot say petitioner has rebutted the presumptions that estoppel applies and that the equivalents at issue have been surrendered. Petitioner concedes that the limitations at issue — the sealing rings and the composition of the sleeve — were made in response to a rejection for reasons under § 112, if not also because of the prior art references. As the amendments were made for a reason relating to patentability, the question is not whether estoppel applies but what territory the amendments surrendered. While estoppel does not effect a complete bar, the question remains whether petitioner can demonstrate that the narrowing amendments did not surrender" }, { "docid": "16251138", "title": "", "text": "‘the equivalent [would] have been unforeseeable at the time of the [amendment],’ [2] that ‘the rationale underlying the amendment [bore] no more than a tangential relation to the equivalent in question,’ or [3] that ‘there [was] some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question.’ ” Id. at 1365 (quoting Festo, 535 U.S. at 740-41, 122 S.Ct. 1831). The court concluded that it could not “anticipate all of the circumstances in which a patentee might rebut the presumption of surrender,” but nevertheless “provide[d] ... general guidance ... regarding the application of the three rebuttal criteria.” Id. at 1368-69. This court will return to the “guidance” provided by the Federal Circuit Court of Appeals on rebutting the presumption of “total surrender,” if necessary, below. b. The “elongated locking member” and “interengagable notches” limitations This court will first apply the Festo analysis to determine whether or not prosecution history estoppel bars assertion of any specific “equivalents” to the “elongated locking member” and “interengagable notches” limitations. The parties disagree vehemently on the outcome of this analysis. i. Ibas there a “narrowing” amendment? The first step of the Festo analysis, again, is whether there was “a narrowing amendment.” Festo, 344 F.3d at 1366 (“The first question in a prosecution history estoppel inquiry is whether an amendment filed in the Patent and Trademark Office (‘PTO’) has narrowed the literal scope of a claim.”). The parties disagree about whether there was such an amendment to eithér the “elongated locking member” limitation or the “interengagable notches” limitation of the ’456 patent. To decide who is right, the court must resort to the prosecution history of the ’456 patent. A general timeline of the prosecution history of the ’456 patent appears in EPC II, 225 F.Supp.2d at 1078-79. The parties focus their present discussion on certain details of that history. Both parties begin their arguments with the original June 19, 1978, patent application. That application claimed, in Claim 1, “[a]n air filter restriction indicating device for internal combustion engines and the like equipped with an air filter" }, { "docid": "19916275", "title": "", "text": "recognized that prosecution history estoppel can occur during prosecution in one of two ways, either (1) by making a narrowing amendment to the claim (“amendment-based estoppel”) or (2) by surrendering claim scope through argument to the patent examiner (“argument-based estoppel”). Deering Precision Instruments, LLC v. Vector Distrib. Sys., Inc., 347 F.3d 1314, 1324 (Fed.Cir.2003). EEI argues that both occurred here. 1. Amendment-based Estoppel First, EEI argues that the examiner’s amendment that added “fatty acid wax” to one of 22 new claims estopped Conoco’s equivalents argument. When a patentee makes a narrowing amendment to a claim, the patent holder has the burden to demonstrate that the reason for the amendment was unrelated to patentability (e.g., to avoid prior art). Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 33, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). When the record lacks explanation for the amendment, we “presume that the PTO had a substantial reason related to patentability for including the limiting element added by amendment.” Id.; accord Festo, 535 U.S. at 735, 739, 122 S.Ct. 1831. Yet, this presumption is not an absolute bar, and the patent holder can rebut the presumption that the doctrine of equivalents will not apply. To do so, “the patentee must show that at the time of the amendment one skilled in the art could not reasonably be expected to have drafted a claim that would have literally encompassed the alleged equivalent.” Festo, 535 U.S. at 741, 122 S.Ct. 1831. A patentee may demonstrate this by showing “[ (1) ] [t]he equivalent may have been unforeseeable at the time of the application; [ (2) ] the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or [ (3) ] there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insub stantial substitute in question.” Id. at 740-41, 122 S.Ct. 1831. Here, there was an examiner’s amendment to add the fatty acid wax limitation to one of the claims. Conoco maintains that the amendment was not related to patentability, but" }, { "docid": "15989268", "title": "", "text": "claim 10 of its patent as a result of the addition of the same “passage” limitation in claim 1 to avoid the prior art. Id. We conclude that the principles espoused in Builders equally apply to a claim limitation that was narrowed in order to obtain allowance of a claim during reexamination, despite the fact that the resulting estoppel may retroactively extend to original, unamended claims, and hold that any estoppel generated by such an amendment applies to all other claims in the patent containing that limitation. To conclude otherwise would be “to exalt form over substance,” id., and subject a limitation to multiple ranges of equivalence depending upon whether or not that limitation was amended in any particular claim, see Am. Permahedge, Inc. v. Barcana, Inc., 105 F.3d 1441, 1446, 41 USPQ2d 1614, 1618 (Fed.Cir.1997) (“[W]e see no reason to assign different ranges of equivalents for the identical term used in different claims in the same patent, absent an unmistakable indication to the contrary.”). Moreover, arguments made to distinguish prior art during reexamination proceedings are retroactively applied to limit the scope of a claim limitation as of the issue date of the patent, not the date those arguments were made. See, e.g., Cole v. Kimberly-Clark Corp., 102 F.3d 524, 532, 41 USPQ2d 1001, 1007 (Fed.Cir.1997) (interpreting broader scope of means-plus-function limitation to have been disclaimed by arguments made by patentee to distinguish the prior art in two reexamination proceedings). For purposes of prosecution history estoppel, we see no reason to treat amendments made during reexamination differently. We therefore reject Intermatic’s assertion at oral argument that the timing of a narrowing amendment dictates the applicability of prosecution history es-toppel, and conclude that none of the claims at issue are entitled to any range of equivalents regarding the “insert within the aperture” limitation under the law set forth in Festo. As we have already determined in section B, supra, that Lamson’s ribbed products do not literally satisfy the “insert within the aperture” limitation, our conclusion that no equivalence can be found means that those products cannot infringe the '135 patent as" }, { "docid": "15067906", "title": "", "text": "the doctrine of equivalents, the district court relied on this court’s holding in Festo I to determine that Deering was estopped from asserting infringement under the doctrine of equivalents. Festo I was vacated by the Supreme Court in Festo II. Accordingly, we vacate the district court’s finding of no infringement under the doctrine of equivalents based on Festo I and address whether prosecution history estoppel, as discussed in the Supreme Court’s decision in Festo II, and this court’s opinion on remand, Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 344 F.3d 1359 (Fed.Cir.2003) (en banc) (“Festo III ”), is applicable to the claims at issue. The parties dispute whether prosecution history estoppel applies to Deering’s allegations of infringement under the doctrine of equivalents. There are two distinct theories that fall under the penumbra of prosecution history estoppel— amendment-based estoppel and argument-based estoppel. Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 979 (Fed.Cir.1999) (holding that the scope of coverage of the claims may change if a patentee has “relinquished [a] potential claim construction in an amendment to the claim or in an argument to overcome or distinguish a reference”). In general, prosecution history es-toppel, under either theory, requires that patent claims be interpreted in light of the proceedings before the PTO. Festo II, 535 U.S. at 733, 122 S.Ct. 1831. 1. Amendment-based Estoppel With respect to amendment-based estoppel, “a narrowing amendment made to satisfy any requirement of the Patent Act may give rise to an estoppel.” Id. at 736, 122 S.Ct. 1831. “A patentee’s decision to narrow his claims ... may be presumed to be a general disclaimer of the territory between the original claim and the amended claim.” Id. at 740, 122 S.Ct. 1831. When the patentee originally claimed the subject matter alleged to infringe but then narrowed the claim in response to a rejection, “courts may presume the amended text was composed with awareness of this rule and that the territory surrendered is not an equivalent of the territory claimed. In those instances, however, the patentee must show that at the time of the amendment one skilled" }, { "docid": "21359039", "title": "", "text": "conclusion that Gaseo does not bar the application of the doctrine of equivalents to find Glenmark’s generic version to infringe the asserted claims. III. Prosecution History Estoppel We have summarized the doctrine of prosecution history estoppel as follows: [P]rosecution history estoppel limits the broad application of the doctrine of equivalents by. barring an equivalents argument for subject matter relinquished when a patent claim is narrowed during prosecution. We have recognized that prosecution history estoppel can occur during prosecution in one of two ways, either (1) by making a narrowing amendment to the claim (“amendment-based estoppel”) or (2) by surrendering claim scope through argument to the patent examiner (“argument-based estoppel”). Conoco, Inc. v. Energy & Envtl. Int’l, L.C., 460 F.3d 1349, 1363 (Fed.Cir.2006) (citations omitted). With respect to the amendment-based estoppel, the Supreme Court has explained: A patentee’s decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim. There are some cases, however, where the amendment cannot reasonably be viewed as surrendering a particular equivalent. The equivalent may have been unforeseeable at the time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. In those cases the patentee can overcome the presumption that prosecution history es-toppel bars a finding of equivalence. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 740-41, 122 S.Ct. 1881, 152 L.Ed.2d 944 (2002). We review de novo issues relating to the application of prosecution history estoppel. Schwarz Pharma, Inc. v. Paddock Labs., Inc., 504 F.3d 1371, 1375 (Fed.Cir.2007). The district court rejected Glenmark’s argument that the '070 patent applicants surrendered a lecithin-free composition (e.g., Glenmark’s proposed generic product) as an equivalent dining prosecution. During prosecution, the examiner noted that two dependent claims, which recited a lecithin “concentration of up to 1%” and “concentration of up to 3%,” respectively, could include zero" }, { "docid": "16329373", "title": "", "text": "S.Ct. 1831. A patentee making such an amendment is presumed to have surrendered the territory for purposes of the doctrine of equivalents, and bears the burden of rebutting this presumption. [W]e hold here that the patentee should bear the burden of showing that the amendment does not surrender the particular equivalent in question. The pat-entee, as the author of the claim language, may be expected to draft claims encompassing readily known equivalents. A patentee’s decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim. Id. at 740, 122 S.Ct. 1831. The Court held that there are three ways in which a pat-entee may rebut this presumption: The equivalent may have been unforeseeable at the time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. Id. Even if estoppel applies, however, the patentee may demonstrate that the narrowing amendment did not surrender the particular equivalents at issue. Id. at 741, 122 S.Ct. 1831. “The standard for determining whether particular subject matter was relinquished is an objective one that depends on what a competitor reasonably would conclude from the patent’s prosecution history.” Mark 1 Marketing, Corp. v. R.R. Donnelley & Sons Co., 66 F.3d 285, 291 (Fed.Cir.1995). The issue of whether prosecution history estoppel bars the availability of the doctrine of equivalents in an infringement action is a matter of law. “We have stated on numerous occasions that whether prosecution history estoppel applies, and hence whether the doctrine of equivalents may be available for a particular claim limitation, presents a question of law.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 344 F.3d 1359, 1367 (Fed.Cir.2003)(“Festo IX”). Any resolution of factual issues underlying these questions of law may be decided by the court, not the jury. Id. at 1369. B. Argument-Based Estoppel The Federal Circuit has extended the principles of" }, { "docid": "22542878", "title": "", "text": "is unable to determine the purpose underlying a narrowing amendment — and hence a rationale for limiting the estoppel to the surrender of particular equivalents — the court should presume that the patentee surrendered all subject matter between the' broader and the narrower language. Just as Warner-Jenkinson held that the patentee bears the burden of proving that an amendment was not made for a reason that would give rise to estoppel, we hold here that the patentee should bear the burden of showing that the amendment does not surrender the particular equivalent in question. This is the approach advocated by the United States, see Brief for United States as Amicus Curiae 22-28, and we regard it to be sound. The patentee, as the author of the claim language, may be expected to draft claims encompassing readily known equivalents. A patentee’s decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim. Exhibit Supply, 315 U. S., at 136-137 (“By the amendment [the patentee] recognized and emphasized the difference between the two phrases and proclaimed his abandonment of all that is embraced in that difference”). There are some cases, however, where the amendment cannot reasonably be viewed as surrendering a particular equivalent. The equivalent may have been unforeseeable at the. time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or there may be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. In those cases the patentee can overcome the presumption that prosecution history estoppel bars a finding of equivalence. This presumption is not, then, just the complete bar by another name. Rather, it reflects the fact that the interpretation of the patent must begin with its literal claims, and the prosecution history is relevant to construing those claims. When the patentee has chosen to narrow a claim, courts may presume the amended text was composed with awareness of this rule and" }, { "docid": "17727973", "title": "", "text": "by the United States, see Brief for United States as Amicus Curiae 22-28, and we regard it to be sound. The patentee, as the author of the claim language, may be expected to draft claims encompassing readily known equivalents. A patentee’s decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim. Exhibit Supply, 315 U.S., at 136-137, 62 S.Ct. 513 (“By the amendment [the patentee] recognized and emphasized the difference between the two phrases and proclaimed his abandonment of all that is embraced in that difference”). There are some cases, however, where the amendment cannot reasonably be viewed as surrendering a particular equivalent. The equivalent may have been unforeseeable at the time of the application; the rationale underlying the amendment may bear no more than a tangential relation to the equivalent in question; or there may [100] be some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. In those cases the paten-tee can overcome the presumption that prosecution history estoppel bars a finding of equivalence. This presumption is not, then, just the complete bar by another name. Rather, it reflects the fact that the interpretation of the patent must begin with its literal claims, and the prosecution history is relevant to construing those claims. When the patentee has chosen to narrow a claim, courts may presume the amended text was composed with awareness of this rule and that the territory surrendered is not an equivalent of the territory claimed. In those instances, however, the patentee still might rebut the presumption that estoppel bars a claim of equivalence. The patentee must show that at the time of the amendment one skilled in the art could not reasonably be expected to have drafted a claim that would have literally encompassed the alleged equivalent. IV On the record before us, we cannot say petitioner has rebutted the presumptions that estoppel applies and that the equivalents at issue have been surrendered. Petitioner concedes that the limitations at" }, { "docid": "15989266", "title": "", "text": "cert. granted, — U.S. -, 121 S.Ct. 2519, 150 L.Ed.2d 692 (2001) (No. 00-1543). Accordingly, because the “insert within the aperture” limitation in reexamined claim 14 was added for a reason relating to patentability, i.e., to avoid the prior art, Intermatic is barred from obtaining any range of equivalents for that limitation. Furthermore, that equivalence bar extends to all of the claims in which the “insert within the aperture” limitation appears. In Builders Concrete, Inc. v. Bremerton Concrete Products Co., this court addressed the question whether prosecution history estoppel applies to a claim containing a limitation that was added to another, separate claim to avoid pri- or art, where that limitation appeared in the claim in its original form and was not amended during prosecution. 757 F.2d 255, 225 USPQ 240 (Fed.Cir.1985). In Builders, a “passage” limitation was incorporated into independent claim 1 from dependent claim 2 during prosecution to avoid a prior art rejection. Id. at 259, 225 USPQ at 243. Claim 10, a separate independent claim, also contained the “passage” limitation as originally filed, and thus did not require any amendment to place that claim in condition for allowance. Id. In addressing whether the estoppel resulting from the amendment to claim 1 also applied to claim 10, the court stated: Although claim 10 is the only claim in suit, the prosecution history of all claims is not insulated from review in connection with determining the fair scope of claim 10. To hold otherwise would be to exalt form over substance and distort the logic of this jurisprudence, which serves as an effective and useful guide to the understanding of patent claims. The fact that the “passage” clause of patent claim 10 was not itself amended during prosecution does not mean that it can be extended by the doctrine of equivalents to cover the precise subject matter that was relinquished in order to obtain allowance of claim 1. Id. at 260, 225 USPQ at 243. Thus, the court in Builders held that prosecution history estoppel barred the patentee in that case from asserting equivalence between the accused structure and" } ]

[ { "docid": "7313371", "title": "", "text": "242 (1964), explicitly recognized the right of a third party to consent to a warrantless search of property to which he has “joint access or control for most purposes.” See Schneckloth v. Bustamonte, 412 U.S. 218, 245-246, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 487-490, 91 S.Ct. 2022, 29 L.Ed. 564 (1971). In Matlock, supra, 415 U.S. at 171, 94 S.Ct. at 993, the Court held: [W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effect sought to be inspected. (Emphasis added.) Justice White clarified what the Court meant by “common authority” in a footnote to the cited sentence. Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, but rests rather upon mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. [415 U. S. at 171 n. 7, 94 S.Ct. at 993]. In the case sub judice Kesterson had a property interest in the searched area because he was a co-lessee. The question we must decide, however, is whether he had the requisite “joint access or control for most purposes” over the property. Id. We conclude that he did not. Although there was no door or lock to Heisman’s room, it was nevertheless an area set aside for his own private use. Kesterson had only been in the room once and then with Heisman’s permission. As a practical matter, Kesterson did" } ]

[ { "docid": "8854824", "title": "", "text": "would shift the analysis from one of actual use to one of assumption of the risk that the other party would exercise his right to enter upon and inspect the premises and to permit others to do so. Under this analysis, Mrs. White would have actual authority to consent to the search. The record shows that Cook recognized that members of the White family might preempt the storage space for their needs. He knew that the Whites actually used one corner of the storage space to store chicken roosts and were entitled to enter the area to remove their property. He also knew that they made exclusive use of one area of the shed, which was separated only by metal screening from the rest of the shed and apparently had no separate entrance. If the Whites maintained such a right to use the premises, it would be foreseeable for them to inspect the premises or to permit other persons to use or inspect the premises. Thus, because the Whites retained such broad control over the premises, we must recognize that Cook had assumed the risk that they might permit others to inspect the premises. See Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). This assumption of risk analysis has predominated in recent Fourth Amendment cases and suggests to us that the government’s reading of the Matlock footnote is the proper one. This court so interpreted the Matlock footnote in United States v. Piet, 498 F.2d 178, 181 (7th Cir. 1974). In Piet, Judge Castle found a valid consent to the search of a warehouse in which goods were found which incriminated the defendant since the consenter’s possession of the keys to the warehouse showed he “had access and control over the common area” and the court concluded that the defendant “had no reasonable expectation of privacy respecting the storage of his goods . . . and assumed the risk that the persons in charge of the facility might willingly and voluntarily grant permission for agents to enter and search the common areas.” The facts" }, { "docid": "5713363", "title": "", "text": "warrant was not obtained until after the contraband had been discovered. Warrantless searches are per se unreasonable under the fourth amendment, subject to only a few exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Thus, the search of the petitioner’s apartment is not valid unless the circumstances fit into one of the exceptions to the general warrant requirement. The respondent relies upon the “consent” exception to the warrant requirement. He argues that Christian’s consent allowed the police to search the petitioner’s apartment, and that Christian’s consent was knowingly and freely given. Schneckloth v. Bustamonte, 412 U.S. 218, 223, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970). In order for the consent to be valid, the person giving the consent must have the authority to do so, Stoner v. California, 376 U.S. 483, 489, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1963), and the consent must be voluntarily given. Schneckloth, 412 U.S. at 223, 93 S.Ct. at 2045. We believe Christian’s consent was not valid because he lacked authority to permit a search of the apartment. A person may consent to a search if he possesses “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). The touchstone of common authority is “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that others have assumed the risk that one of their number might permit the common area to be searched.” Id. at 171 n.7, 94 S.Ct. at 993 n.7. With these factors as the focus of our analysis, we shall examine the extent of Christian’s authority. Christian did not live in the petitioner’s apartment. Although he had known the petitioner for several years, he" }, { "docid": "2631420", "title": "", "text": "to search was freely and voluntarily given, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and was obtained from someone “who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Since third party consent does not involve the vicarious waiver of a defendant’s constitutional rights, it validates a search only when a defendant can be said to have assumed the risk that someone having authority over the area to be searched would permit the governmental intrusion in his own right. See id. at 171 n.7, 94 S.Ct. at 993 n.7; United States v. Block, 590 F.2d 535, 539-40 & n.5 (4th Cir. 1978). Buettner-Janusch assails the constitutionality of the May 17 search both on the ground that consent was not given voluntarily and on the theory that Jolly and Macris lacked the requisite authority to grant permission to search. A. The question of the voluntariness of Macris’s and Jolly’s consent need not detain us long. Whether consent was given voluntarily is an issue of fact, to be determined by the trial judge, who is to draw his findings from all of the appropriate and relevant circumstances. Schneckloth v. Bustamonte, supra, 412 U.S. at 248-49, 93 S.Ct. at 2058-59. The court’s findings will not be set aside on appeal unless they are clearly erroneous. United States v. Sanchez, 635 F.2d 47 (2d Cir. 1980); United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976); United States v. Bronstein, 521 F.2d 459, 463 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976). Moreover, it is well settled that consent may be inferred from an individual’s words, gestures, or conduct. United States v. Griffin, supra, 530 F.2d at 742. Thus a search may be lawful even if the person giving consent does not recite the talismanic phrase: “You have my permission to search.” Judge Brieant’s finding that both Macris and Jolly impliedly consented to the May" }, { "docid": "21246052", "title": "", "text": "Fourth Amendment protects”); United States v. Waupekenay, 973 F.2d 1533, 1536 (10th Cir.1992) (observing that the defendant had “a heightened expectation of privacy when he was within his trailer” because “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home”) (alternations and internal quotation marks omitted). Consensual searches constitute one exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Kimoana, 383 F.3d 1215, 1221 (10th Cir.2004). Consent may be obtained from the individual whose property is searched, or in certain instances, from a third party who possesses either actual authority or apparent authority to consent to the search. See United States v. Mat-lock, 415 U.S. 164, 169-72, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (discussing actual authority); Illinois v. Rodriguez, 497 U.S. 177, 186-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (discussing apparent authority); Kimoana, 383 F.3d at 1220-1223 (applying both doctrines). The government has the burden of proving that the consenting party had such authority. See United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990) (actual authority); Kimoana, 383 F.3d at 1222 (apparent authority). Here, the government maintains that Ms. Ricker had both actual and apparent authority to consent to the search of Mr. Cos’s apartment. We consider each argument in turn. 1. Actual Authority a. Matlock The Supreme Court’s decision in Mat-lock sets forth the test for actual authority. There, the Court held that a woman who jointly occupied with the defendant a bedroom in her mother’s house could validly consent to a search of that bedroom. The Court explained that “when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Matlock, 415 U.S. at 171, 94 S.Ct. 988. Under Matlock, “common authority” is not based" }, { "docid": "23679227", "title": "", "text": "exceptions, however. “[0]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “The [Fourth Amendment] prohibition does not apply ... to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the premises.” Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793 (citations omitted). A third party’s consent to search is valid if that person has either the “actual authority” or the “apparent authority” to consent to a search of that property. United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir.1998) (citing Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793). The test for “actual authority” was articulated in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and interpreted by the Tenth Circuit in United States v. Rith, 164 F.3d 1323, 1329 (10th Cir.1999). In Rith, we stated that “a third party has authority to consent to a search of property if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it.” Id. Therefore, the gravamen of the “actual authority” rule is that it is reasonable to recognize that “any of the co-habitants has the right to permit the inspection in his own right- and ..-. the others have assumed the risk that one of their number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988. The Supreme Court set forth the test for “apparent authority” in Rodriguez, 497 U.S. at 186-88, 110 S.Ct. 2793. “Rodriguez held that the Fourth Amendment is not violated when officers enter without a warrant when they reasonably, although erroneously, believe that the person who consents to their entry has the authority to consent to this entry.” Gutierrez-Hermosillo, 142 F.3d at 1230. The “apparent authority” test for determining the reasonableness of" }, { "docid": "18559700", "title": "", "text": "not reached, the Court’s response in dicta seems to show that the Court would review the issue as essentially factual: “Because the issue of consent is ordinarily a factual issue unsuitable for our consideration in the first instance, we express no opinion as to whether the search at issue here might be justified as consensual.” Id. It is unnecessary in this case, however, to decide whether the issue of apparent authority to consent is essentially factual and thus whether our standard of review should be de novo or for clear error. Under either standard, we would conclude that a valid consent was given. The fourth amendment prohibits searches conducted without a warrant unless they fall within a “ ‘few specifically established and well-delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973) (Schneckloth), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception is a search conducted pursuant to proper consent voluntarily given. See United States v. Matlock, 415 U.S. 164, 165-66, 94 S.Ct. 988, 990-91, 39 L.Ed.2d 242 (1974) (Matlock); Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2043. Proof of voluntary consent, however, is not limited to proof that consent was given by the defendant. Valid consent to search can be “obtained from a third party who possessed common authority over or other sufficient relationship to the premises.” Matlock, 415 U.S. at 171, 94 S.Ct. at 993. We need not determine whether Cosbie actually possessed common authority over or other sufficient relationship to the motor home in order to affirm the district judge’s denial of Hamilton’s motion to suppress evidence. Rather, we must determine whether agents Powers and Flanigan “in good faith relie[d] on what reasonably, if mistakenly, appeared] to be [Cosbie’s] authority to consent to the search.” United States v. Sledge, 650 F.2d 1075, 1081 (9th Cir.1981). Agents Powers and Flanigan found the motor home parked in the driveway of Cosbie’s home with the door open. The motor home had been driven to her home by a grandson, was" }, { "docid": "2631419", "title": "", "text": "obstruction of justice count. The jury convicted the defendant on four of the five remaining counts, and acquitted him of distributing cylert pemoline. Judge Brieant sentenced Buettner-Janusch to a total of five years’ imprisonment, to be followed by a two-year special parole term on the manufacturing count. II. Having stated the factual background with some detail, we approach our discussion of the law. It is basic Fourth Amendment jurisprudence that when the Government seeks to intrude upon an individual’s legitimate expectations of privacy, it must either obtain a warrant from a neutral magistrate or bring its search within one of the few “jealously and carefully drawn” exceptions to the warrant requirement, Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). Throughout this litigation, the prosecution has maintained that the May 17 search was validated by the consent of Jolly and Richard Macris. To satisfy the burdens imposed on it by the third party consent principle, the Government must show, by a preponderance of the evidence, that the consent to search was freely and voluntarily given, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and was obtained from someone “who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Since third party consent does not involve the vicarious waiver of a defendant’s constitutional rights, it validates a search only when a defendant can be said to have assumed the risk that someone having authority over the area to be searched would permit the governmental intrusion in his own right. See id. at 171 n.7, 94 S.Ct. at 993 n.7; United States v. Block, 590 F.2d 535, 539-40 & n.5 (4th Cir. 1978). Buettner-Janusch assails the constitutionality of the May 17 search both on the ground that consent was not given voluntarily and on the theory that Jolly and Macris lacked the requisite authority to grant permission to search. A. The question of the voluntariness" }, { "docid": "1429552", "title": "", "text": "Salimonu’s apartment. It is basic that “any intrusion upon a constitutionally-protected privacy interest without a proper warrant is per se unreasonable under the Fourth Amendment subject only to a few specifically established exceptions.” United States v. Donlin, 982 F.2d 31, 33 (1st Cir.1992) (internal quotation marks omitted). Consent is one such exception to the warrant requirement. Id.; see also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In order for the consent to a warrantless search to be valid, however, the consent must come either from the defendant or “from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The Court explained in Matlock that common authority requires mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Id. at n. 7. It is common authority which gives the consenting party the ability to allow the government to conduct a search “even when the defendant specifically objects to it.” Donlin, 982 F.2d at 33. This common authority requirement reflects an important principle: the consenting party does not waive the defendant’s Fourth Amendment rights. Instead, the consenting party voluntarily consents to waive his or her own privacy interest in the property to be searched, thereby validating the government’s otherwise-proscribed warrant-less search. “The burden of establishing that common authority rests upon [the government].” Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). The district court erred in concluding that Picou had the requisite authority to consent to the search of Salimonu’s apartment. At the suppression hearing, it was established that Picou did not live there; none of her possessions was in the apartment; indeed," }, { "docid": "17910660", "title": "", "text": "warrantless searches, see Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999), valid consent to seize and search items provides an exception to the usual warrant requirement, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In responding to a defendant’s motion to suppress, the Government bears the burden of establishing, by a preponderance of the evidence, that it obtained valid consent to search. See United States v. Block, 590 F.2d 535, 539 (4th Cir.1978). Consent to search is valid if it is (1) “knowing and voluntary,” Trulock v. Freeh, 275 F.3d 391, 401 (4th Cir.2001) (iciting United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)), and (2) given by one with authority to consent, Trulock, 275 F.3d at 402-03 (citing Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964)). There is no question in this case that Michelle Buckner’s consent was knowing and voluntary; Frank Buckner challenges only her authority to consent. Because the Government has never contended that Michelle had primary ownership of, or sole access to, these files, this case presents an issue of third-party consent. A third-party has authority to consent to a search of property when she possesses “common authority over or other sufficient relationship to the ... effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). “Common authority” in this context is not merely a question of property interest. Rather, it requires evidence of “mutual use” by one generally having “joint access or control for most purposes.” Id. at 171, n. 7, 94 S.Ct. 988. Such use makes it “reasonable to recognize that any of the co-[users] has the right to permit the inspection in h[er] own right and that the others have assumed the risk that one of their number might permit the common [effects] to be searched.” Id. We have previously considered whether a computer user has actual authority to consent to a warrantless search of the password-protected files of a" }, { "docid": "16317875", "title": "", "text": "case-in-chief against Damrah [Doc. No. 115]. The Court therefore decides Damrah’s motion to suppress. II. LEGAL STANDARD The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.” The Fourth Amendment’s prohibition against unreasonable searches and seizures forbids most warrantless searches. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (stating that warrantless searches are “per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions”). Searches to which the defendant consents are among the exceptions to this rule. Schneckloth v. Bustamonte, 412 U.S. 218, 219 93 S.Ct. 2041, 2044, 36 L.Ed.2d 854 (1973). In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the United States Supreme Court held that the authority to consent is not limited to defendants themselves. Instead, third parties may consent to a search if they have “common authority over or other sufficient relationship to the premises ... to be inspected.” Matlock, 415 U.S. at 171, 94 S.Ct. at 993. Elaborating on this standard, the Matlock Court stated that “common authority ... rests ... on mutual use of the property by persons generally having joint access or control for most purposes.” Id. at n. 7, 94 S.Ct. 988. However, a third party need not actually have common authority over the property for the search to be constitutionally permissible. Instead, courts will uphold a search if “the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.” Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990) (quoting Terry v. Ohio, 392, U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). Regardless, an otherwise valid" }, { "docid": "22467267", "title": "", "text": "supra. Having found no error in denying suppression of Gereau’s statements, we reject defendants’ argument that the arrest warrants for La Beet and Ballantine were not based on the probable cause requisite under the Fourth Amendment. Searches: 160 Estate Grove Place Defendants challenge the District Judge’s refusal to suppress the evidence seized in each of the searches described earlier. The first such search occurred at 160 Estate Grove Place immediately following the arrest of defendant Smith. That site was subsequently searched two more times. The first two searches at Grove Place were made without warrants and the third search was pursuant to a search warrant obtained on the basis of evidence gathered in the first two. The Government has advanced several theories to support these searches, each of which is contested by defendants. One argument put forward by the Government is that all these searches were based on the voluntary consent of Smith’s uncle, James Tuitt. While exceptions to the Fourth Amendment’s warrant requirement are “few in number and carefully delineated,” United States v. United States District Court, 407 U.S. 297, 318, 92 S.Ct. 2125, 2137, 32 L.Ed.2d 752 (1972), “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent,” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Defendants do not claim that the Government has failed to carry its burden of showing that Tuitt’s consent was freely and voluntarily given, see Schneckloth v. Bustamonte, supra at 222, 93 S.Ct. 2041, but rather contend that Tuitt lacked authority to consent to the searches. Authority to consent does not, for Fourth Amendment purposes, turn on ownership of the property searched. See e. g., Chapman v. United States, 365 U.S. 610, 616-618, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). An owner or user of property can consent to search of that property, fruits of which may be admitted against another person, only if the relationship of each person to the property demonstrates that the non-consenting user assumed the risk that" }, { "docid": "18760853", "title": "", "text": "gun was admissible evidence because Blanca consented to, indeed requested, the search of the car. The fact that Blanca voluntarily consented to the search is undisputed. The question we are asked to decide is whether Blanca had the requisite common authority over the car so that her consent to the search was valid. We begin by noting that consent is an exception to the requirement that searches by the government must be conducted pursuant to a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Consent by a person who possesses common authority over premises or effects is valid as against a non-consenting person with whom that authority is shared. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). In Matlock, the Supreme Court only briefly discussed the elements necessary to a determination of whether the consenting party shared joint control with the non-consenting party. The Court wrote: Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-habitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched (citations omitted). Matlock, 94 S.Ct. at 993 n. 7. In order to determine whether Blanca had the authority to consent to the search, it is relevant to examine the circumstances surrounding the ownership as well as possession of the car and the events leading up to the search. First, title to the car was in Blanca’s name and Blanca alone was liable for the debt incurred in purchasing the car. Second, despite her legal ownership, Blanca testified at the suppression hearing that she" }, { "docid": "22445794", "title": "", "text": "to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973). In order to satisfy the consent exception, the government must establish that consent to search was freely and voluntarily given and that the individual who gave consent had authority to do so. See United States v. Jenkins, 46 F.3d 447, 451 (5th Cir.1995). The government must prove by a preponderance of the evidence that consent was voluntary and effective. See United States v. Hurtado, 905 F.2d 74, 75 (5th Cir.1990). Gonzales, Sr., and Olivares argue that the search of the warehouse was unconstitutional for two reasons: first, Olivares did not have authority to consent to the search; and second, Olivares’ consent was not voluntary. We disagree. 1. When the government seeks to justify a warrantless search on the theory that consent was lawfully obtained from a third party, rather than from the person whose property was searched or seized, the government bears the burden of proving that the third party had either actual or apparent authority to consent. To establish that a third party had actual authority to consent, the government must demonstrate “mutual use of the property by persons generally having joint access or control for most purposes.” United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974). To establish that a third party had apparent authority to consent, however, the government need demonstrate only that the officers reasonably believed that the third party was authorized to consent. See Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990). At the suppression hearing, Meisel testified that the surveillance team entered the warehouse and secured the premises, then immediately asked to speak to the owner of the warehouse. When the defendants explained that the owner was not present, the officers asked whether anyone was in the “care, custody and control” of the warehouse. Olivares volunteered, explaining that he lived on the" }, { "docid": "13586553", "title": "", "text": "denied this motion on April 1, 2004. In this court, the Government filed a motion to stay further proceedings pending issuance of the mandate in United States v. Oliver, 397 F.3d 369 (6th Cir.2005), as the outcome there would bear- on Defendant’s sentencing, and for permission to file a supplemental brief. This motion was granted, and on August 22, 2005, the Government filed a letter brief addressing Defendant’s sentencing and the related Sixth Amendment issues. Defendant filed no response. II. MOTION TO SUPPRESS A. Standard of Review In reviewing a denial of a motion to suppress, we review the district court’s legal conclusions de novo and its findings of fact for clear error. United States v. Harris, 192 F.3d 580, 584 (6th Cir.1999). B. Third-Party Consent and Apparent Authority Where valid consent is given, a search is permissible under the Fourth Amendment even without a warrant or probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Such consent must be “freely and voluntarily given.” Id. at 222, 93 S.Ct. 2041 (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)). Valid consent may be given not only by the defendant but also by “a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). We have held that even where third-party consent comes from an individual without actual authority over the property searched, there is no Fourth Amendment violation if the police conducted the search in good faith reliance on the third-party’s apparent authority to authorize the search through her consent. United States v. Hunyady, 409 F.3d 297, 303 (6th Cir.2005) (citing United States v. Gillis, 358 F.3d 386, 390 (6th Cir.2004)). “Apparent authority is judged by an objective standard. A search consented to by a third party without actual authority over the premises is nonetheless valid if the officers reasonably could conclude from the facts available that the third party had" }, { "docid": "1429551", "title": "", "text": "case law, that '•'‘Ithe indictment required specific proof of knowledge that heroin was to be imported.” By failing to develop this argument, Salimonu has waived it. See, e.g., United States v. Bon giorno, 106 F.3d 1027, 1034 (1st Cir.1997) (“We have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation.'') (citations omitted). LIPEZ, Circuit Judge, dissenting. The majority concludes that “any error the district court may have committed [in admitting evidence from the search] is harmless” because it is “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” I respectfully disagree with that conclusion. I must therefore analyze the legality of the search and the issue of harmless error. The Search I do not question the district court’s factual findings, e.g., I accept that Picou voluntarily consented to the search. I do, however, disagree with the district court’s legal determination that Picou had actual legal authority or, in the alternative, that she had apparent authority to consent to the search of Salimonu’s apartment. It is basic that “any intrusion upon a constitutionally-protected privacy interest without a proper warrant is per se unreasonable under the Fourth Amendment subject only to a few specifically established exceptions.” United States v. Donlin, 982 F.2d 31, 33 (1st Cir.1992) (internal quotation marks omitted). Consent is one such exception to the warrant requirement. Id.; see also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In order for the consent to a warrantless search to be valid, however, the consent must come either from the defendant or “from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The Court explained in Matlock that common authority requires mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the" }, { "docid": "8854826", "title": "", "text": "in the Piet case are not as significant for our purposes as the court’s analysis: Judge Castle ultimately found the existence of common authority on the basis of the defendant’s assumption of the risk that permission for inspection might be granted. The terms “mutual use of the property by persons generally having access or control for most purposes” were clearly given content by the later phrase and the determining factor in the decision was that of assumption of the risk. Accord, Virgin Islands v. Gereau, 502 F.2d 914, 926 (3rd Cir. 1974); United States v. Jenkins, 496 F.2d 57, 72 (2d Cir. 1974); contra, United States v. Heisman, 503 F.2d 1284, 1288-89 (8th Cir. 1974). On the basis of this reading of footnote 7 in Matlock, we find that the district court properly held that actual authority to consent to the search of the poultry house existed at the time consent was given. Laurell Cook’s alternative argument for suppressing the evidence obtained in the search, that the government made no showing as to why a search warrant was not obtained, must also fall. The law does not require a showing of such an attempt, since a valid consent to search is characterized as a waiver of Fourth Amendment protections including the need to obtain a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946). III. Laurell Cook’s second allegation of error is that the district judge erroneously refused to grant a mistrial after a government witness testified to a confession made by co-defendant Bobby Cook inculpating Laurell. The reference to Laurell Cook was made by Sergeant Malone of the Eau Claire, Wisconsin, Police Department while testifying to the statement made by Bobby Cook when Bobby was being transported to the United States Magistrate for a bond hearing after his arrest. Malone’s testimony, in context, was: Witness Malone: “All right. At that point Mr. Cook said that he couldn’t understand other charges and that he couldn’t understand how certain material" }, { "docid": "20009738", "title": "", "text": "1241 (1993). In this “totality of the circumstances” analysis, no one fact is dispositive. In this case there are certainly “specific and articulable” facts which, in addition to the car’s description, are sufficient to form a reasonable suspicion in Officer Helthinstine. The district court properly held that Officer Helthinstine could stop and investigate appellant where he had reasonable suspicion of criminal activity. Considering the totality of the circumstances, we hold that reasonable suspicion existed such that stopping appellant was constitutionally permissible. C. The district court did not err in finding that the Government met its burden in showing that valid consent was obtained While the Fourth Amendment protects citizens from unreasonable searches and seizures, a search is not unreasonable if an individual with a privacy interest in the item to be searched gives voluntary consent. Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Valid consent may be provided not only by the defendant but also by “a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The government bears the burden of proving that the consent was voluntary by “clear and positive testimony.” United States v. Erwin, 155 F.3d 818, 823 (6th Cir.1998). Voluntariness is determined by examining the totality of the circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041. Relevant factors in determining voluntariness, none of which are dis-positive, include the repeated and prolonged nature of questioning, the use of physical punishment such as the deprivation of food or sleep, and the length of detention. Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041 (citations omitted). While knowledge of the right to refuse may be considered as a factor, it is not a necessary finding. Id. at 227, 93 S.Ct. 2041. A subjective belief of coercion is not sufficient to destroy voluntariness. United States v. Crowder, 62 F.3d 782 (6th Cir.1995). Despite the district court’s finding that consent to search the house was voluntarily given by his" }, { "docid": "15042820", "title": "", "text": "which were later received into evidence at the trial. A motion to suppress had been earlier heard and denied. At this hearing it was argued that under the circumstances, only Robert Haynes had the authority to consent to a search of the mini-warehouse, and that DuPont had no such authority. We do not agree with this argument. A search of property, without a warrant and without probable cause, but with proper consent, does not offend the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In the instant case the search of the mini-warehouse was without warrant and from the record we cannot tell whether the search was based on probable cause. In any event, the Government seeks to validate the search on the basis of DuPont’s consent thereto. It has been held that the consent to a search by one who possessed common authority over premises or effects is valid against the absent, non-consenting person with whom authority is shared. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). Similarly, in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court stated that when the prosecution seeks to justify a warrant-less search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that consent was obtained from a third party “who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” By footnote (p. 171, 94 S.Ct. p. 993) the court in Matlock observed that common authority is not to be implied from the mere fact that the third party may have a property interest in the premises or effects sought to be inspected, since the authority which justifies a third party’s consent “does not rest upon the law of property, with its attendant historical and legal refinements . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it" }, { "docid": "8854825", "title": "", "text": "premises, we must recognize that Cook had assumed the risk that they might permit others to inspect the premises. See Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). This assumption of risk analysis has predominated in recent Fourth Amendment cases and suggests to us that the government’s reading of the Matlock footnote is the proper one. This court so interpreted the Matlock footnote in United States v. Piet, 498 F.2d 178, 181 (7th Cir. 1974). In Piet, Judge Castle found a valid consent to the search of a warehouse in which goods were found which incriminated the defendant since the consenter’s possession of the keys to the warehouse showed he “had access and control over the common area” and the court concluded that the defendant “had no reasonable expectation of privacy respecting the storage of his goods . . . and assumed the risk that the persons in charge of the facility might willingly and voluntarily grant permission for agents to enter and search the common areas.” The facts in the Piet case are not as significant for our purposes as the court’s analysis: Judge Castle ultimately found the existence of common authority on the basis of the defendant’s assumption of the risk that permission for inspection might be granted. The terms “mutual use of the property by persons generally having access or control for most purposes” were clearly given content by the later phrase and the determining factor in the decision was that of assumption of the risk. Accord, Virgin Islands v. Gereau, 502 F.2d 914, 926 (3rd Cir. 1974); United States v. Jenkins, 496 F.2d 57, 72 (2d Cir. 1974); contra, United States v. Heisman, 503 F.2d 1284, 1288-89 (8th Cir. 1974). On the basis of this reading of footnote 7 in Matlock, we find that the district court properly held that actual authority to consent to the search of the poultry house existed at the time consent was given. Laurell Cook’s alternative argument for suppressing the evidence obtained in the search, that the government made no showing as to why a" }, { "docid": "13578439", "title": "", "text": "come to his attention because that evidence could have been used to his advantage; (6) that Mrs. Harrison’s testimony regarding her calls to Detective Penberg was inadmissible because it was given in response to questions by the prosecution calling for hearsay answers; and (7) that the “ledger” sheet was inadmissible and irrelevant because it set out past poker winnings, not money secured through drug dealings as alleged. We find all of these arguments to be without merit. A. Seizure of the Evidence It is “well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). See also Coolidge v. New Hempshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 2048-50, 29 L.Ed.2d 564 (1971) and Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 1261, 1262, 90 L.Ed. 1453 (1945). This exception to the warrant requirement is not limited to consent by a defendant as noted in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974): [W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed a common authority over or other sufficient relationship to the premises or effects sought to be inspected. “Common authority” is defined as resting— on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Id. at 171 n.7, 94 S.Ct. at 993 n.7. Consent by third parties with common authority over the premises searched “is valid against the absent, nonconsenting person with" } ]

[ { "docid": "7282044", "title": "", "text": "the bankruptcy court for entry of an order allocating the amount and extent of tax liens). If the matters on remand “concern primarily factual issues about which there is no dispute, and the appeal concerns primarily a question of law, then the ‘policies of judicial efficiency and finality are best served by our resolving the question now.’ ” Id. (quoting Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988)). On the other hand, if “the district court remands for further factual findings related to a central issue raised on appeal,” the district court’s decision is usually not final. Bonner Mall P’ship, 2 F.3d at 904. Even when the remand involves factfinding on a central issue, we may nonetheless exercise jurisdiction “if that issue is legal in nature and its resolution either (1) could dispose of the case or proceedings and obviate the need for factfinding; or (2) would materially aid the bankruptcy court in reaching its disposition on remand.” Lundell, 223 F.3d at 1038 (citing Bonner Mall P’ship, 2 F.3d at 904). In this case, the remand required the bankruptcy court to determine the amount of interest to which the Trustee is entitled on his refund claim. That question is only tangentially related to the central legal issue on appeal, namely, whether the Trustee is entitled to any refund at all. Further, even if the amount of interest could be characterized as a central issue, appellate review would be appropriate because our reversal of the district court's opinion would “dispose of the case or proceedings and obviate the need for factfind-ing.” Id. Thus, under this circuit’s pragmatic approach, we may regard the district court’s decision as final. We turn, then, to the merits. B. Statutory Text Section 724(b) provides: Property in which the estate has an interest and that is subject to a lien that is not avoidable under this title and that secures an allowed claim for a tax, or proceeds of such property, shall be distributed— (1) first, to any holder of an allowed claim secured by a lien on such property that is not" } ]

[ { "docid": "15911079", "title": "", "text": "the case that final decisions as to them should be appealable as of right.” Id. at 1363 (citations omitted). Our approach “emphasizes the need for immediate review, rather than whether the order is technically interlocutory ...” Allen v. Old Natl Bank of Washington (In re Allen), 896 F.2d 416, 418 (9th Cir.1990) (citation omitted). Under our pragmatic approach, a bankruptcy court order is considered to be final and thus appealable “where it 1) resolves and seriously affects substantive rights and 2) finally determines the discrete issue to which it is addressed.” Law Offices of Nicholas A. Franke v. Tiffany (In re Lewis), 113 F.3d 1040, 1043 (9th Cir.1997); see In re Allen, 896 F.2d at 418-19 (citing Mason v. Integrity Insurance Co. (In re Mason), 709 F.2d 1313, 1315 (9th Cir.1983)). “Although this finality rule is given additional flexibility in the bankruptcy proceedings context, traditional finality concerns nonetheless dictate that “we avoid having a case make two complete trips through the appellate process.’ ” In re Lewis, 113 F.3d at 1043 (quoting Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895 (9th Cir.1992)). We have yet to directly address whether a bankruptcy court’s order of substantive consolidation is final and appealable under § 158(a). However, other circuits have generally addressed interlocutory appeals of substantive consolidation orders without consideration of the jurisdictional question raised here. See, e.g., First Nat’l Bank of El Dorado v. Giller (In re Giller), 962 F.2d 796, 797-98 (8th Cir.1992); Eastgroup Properties v. Southern Motel Assoc., Ltd., 935 F.2d 245, 248 (11th Cir.1991); Union Savings Bank v. Augie/Restivo Baking Co. Ltd. (In re Augie/Restivo Baking Co.), 860 F.2d 515, 516-17 (2d Cir.1988); cf. Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp., Inc.), 810 F.2d 270, 272-73 (D.C.Cir.1987). Consistent with the approach of our sister circuits, and properly applying Frontier Prop., we conclude that substantive consolidation orders are final and ap-pealable under § 158(a). A substantive consolidation order seriously affects the substantive rights of the involved parties. The bankruptcy rules recognize as much: Consolidation, as distinguished from joint administration, is neither authorized" }, { "docid": "15911078", "title": "", "text": "novo the district court’s ruling that a bankruptcy court’s decision is not an appeal-able, final order. See Duckor Spradling & Metzger v. Baum Trust (In re P.R.T.C., Inc.), 177 F.3d 774, 782 (9th Cir.1999). Under 28 U.S.C. § 158(d), appellate jurisdiction exists when the bankruptcy court order and the decision of the district court acting in its bankruptcy appellate capacity are both final orders. See Elliott v. Four Seasons Prop. (In re Frontier Prop.), 979 F.2d 1358, 1362 (9th Cir.1992) (citations omitted); King v. Stanton (In re Stanton), 766 F.2d 1283, 1285 (9th Cir.1985); Dominguez v. Miller (In re Dominguez), 51 F.3d 1502, 1506 (9th Cir.1995). Ordinarily, a final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” In re Frontier Prop., 979 F.2d at 1362 (citations omitted). We have adopted a “pragmatic approach” to finality in bankruptcy because “certain proceedings in a bankruptcy case are so distinctive and conclusive either to the rights of individual parties or the ultimate outcome of the case that final decisions as to them should be appealable as of right.” Id. at 1363 (citations omitted). Our approach “emphasizes the need for immediate review, rather than whether the order is technically interlocutory ...” Allen v. Old Natl Bank of Washington (In re Allen), 896 F.2d 416, 418 (9th Cir.1990) (citation omitted). Under our pragmatic approach, a bankruptcy court order is considered to be final and thus appealable “where it 1) resolves and seriously affects substantive rights and 2) finally determines the discrete issue to which it is addressed.” Law Offices of Nicholas A. Franke v. Tiffany (In re Lewis), 113 F.3d 1040, 1043 (9th Cir.1997); see In re Allen, 896 F.2d at 418-19 (citing Mason v. Integrity Insurance Co. (In re Mason), 709 F.2d 1313, 1315 (9th Cir.1983)). “Although this finality rule is given additional flexibility in the bankruptcy proceedings context, traditional finality concerns nonetheless dictate that “we avoid having a case make two complete trips through the appellate process.’ ” In re Lewis, 113 F.3d at 1043 (quoting Vylene Enterprises, Inc." }, { "docid": "21041954", "title": "", "text": "of the BAP de novo. See In re Filtercorp, Inc., 163 F.3d 570, 576 (9th Cir.1998). The bankruptcy court’s findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. Id. III. Jurisdiction We have jurisdiction to review final orders of the BAP under 28 U.S.C. § 158(d). See In re Kelly, 841 F.2d 908, 911 (9th Cir.1988). The BAP renders a final order when it affirms or reverses a bankruptcy court’s final order. Id. However, the BAP’s order is ordinarily not final when the BAP remands for further factual findings related to a central issue raised on appeal. Id. Given the unique nature of bankruptcy proceedings, however, we have taken a “pragmatic” approach by balancing several policies in determining whether a remand order may be considered final, including: (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. See Lundell v. Anchor Constr. Specialists, 223 F.3d 1035, 1038 (9th Cir.2000). We have acknowledged two narrow exceptions to the general finality rule. We may assert jurisdiction even though the BAP has remanded a matter for factual findings on a central issue “if that issue is legal in nature and its resolution either (1) could dispose of the case or proceedings and obviate the need for factfinding; or (2) would materially aid the bankruptcy court in reaching its disposition on remand.” Id. Debtors raise three issues on appeal. First, they contest the BAP’s determination that, due to the homestead exemption, Henrichsen’s entire claim is unsecured. Second, they argue that the $4,136 Mary Scovis automobile loan should not be classified as unsecured debt. Third, they contend that the IRS payroll tax should be disregarded since it was erroneously included in the schedules and because the tax has since been paid. Here, jurisdiction hinges on the Mary Scovis claim since it is the only claim that was both remanded to the bankruptcy court for further inquiry and appealed to this Court. Because Debtors’" }, { "docid": "22032297", "title": "", "text": "a decision of the bankruptcy court pursuant to 28 U.S.C. § 158(a). That provision gives district courts jurisdiction to hear appeals from “final judgments, orders, and decrees, and with leave of the court, from interlocutory orders and decrees” of the bankruptcy court. Id. The bankruptcy court’s order denying Crossland’s fee application constituted a final decision under section 158(a). Thus, the district court properly asserted jurisdiction. Section 158(d) provides that “[t]he courts of appeal shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsections (a) and (b) of this section.” Id. § 158(d). Our jurisdiction under section 158(d) therefore requires a final decision from the district court. Where, as here, the district court acts in its bankruptcy appellate capacity, 28 U.S.C. § 1291 may also give us appellate jurisdiction to review final decisions. See Connecticut National Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (Germain); Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 891 (9th Cir.1992) (Vylene). The issue presented in this case, therefore, is whether vacating the bankruptcy court’s order and remanding for further proceedings constitutes a “final decision” of the district court under either section 158(d) or section 1291. Ordinarily, a district court order is final if it affirms or reverses a final bankruptcy court order. King v. Stanton (In re Stanton), 766 F.2d 1283, 1287 (9th Cir.1985) (Stanton) (determining whether decision of bankruptcy appellate panel (BAP) was final under section 158(d)). Finality is more difficult to determine where the district court reverses a final order of the bankruptcy court and remands the case. Vylene, 968 F.2d at 895. Prior to the Supreme Court’s decision in Germain, our decisions held that the finality standard applied in bankruptcy proceedings is more flexible than that applied in other civil proceedings, because the “unique nature of bankruptcy procedure dictate[d] that we take a pragmatic approach to finality.” Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 903-04 & n. 10 (9th Cir.1993) (Bonner Mall), dismissed as" }, { "docid": "18797246", "title": "", "text": "Old Nat’l Bank of Wash (In re Allen), 896 F.2d 416, 418 (9th Cir.1990) (per curiam). Here, the bankruptcy court’s order granting relief from the automatic stay was clearly final. Packerland Packing Co. v. Griffith Brokerage Co. (In re Kemble), 776 F.2d 802, 805 (9th Cir.1985). Moreover, if Bancorp had foreclosed on the mall, Bonner’s sole significant asset, for all intents and purposes the bankruptcy case would have ended; therefore, the bankruptcy court’s order required immediate appellate review. See Elliot v. Four Seasons Properties (In re Frontier Properties, Inc.), 979 F.2d 1358, 1363 (9th Cir.1992); Allen, 896 F.2d at 418. The more difficult question is whether the district court’s order was final. The unique nature of bankruptcy procedure dictates that we take a pragmatic approach to finality. Vylene Enter. Inc. v. Naugles (In re Vylene Enter. Inc.), 968 F.2d 887, 894 (9th Cir.1992); Mason v. Integrity Ins. Co. (In re Mason), 709 F.2d 1313, 1318 (9th Cir.1983). Our cases hold that 28 U.S.C. section 158(d) affords a more liberal finality standard than does 28 U.S.C. section 1291. Vylene, 968 F.2d at 893-94. Under Ninth Circuit law, if the district court affirms or reverses a final bankruptcy court order, its order is final. King v. Stanton (In re Stanton), 766 F.2d 1283, 1287 (9th Cir.1985). However, difficult questions regarding finality sometimes arise when a district court reverses a final order of a bankruptcy court and remands. Vylene, 968 F.2d at 895. In such circumstances we balance two important policies: avoiding piecemeal appeals and enhancing judicial efficiency. Id.; Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988). We also consider the systemic interest in preserving the bankruptcy court’s role as the finder of fact. Stanton, 766 F.2d at 1287. On the basis of our analysis of these factors, we have concluded that when the district court remands for further factual findings related to a central issue raised on appeal, its order is ordinarily not final and we lack jurisdiction. Id. at 1286. However, Stanton suggests that we should assert jurisdiction even though a district court has remanded a matter" }, { "docid": "15125263", "title": "", "text": "if not in the amount sought by the IRS. Accordingly, the court remanded the case with directions to recompute Olshan’s tax liability consistent with its decision and to determine penalties and interest. The trustee now appeals. II. JURISDICTION At the threshold we must decide whether we have jurisdiction. “We have jurisdiction to review final orders of a district court acting in its bankruptcy appellate capacity under either 28 U.S.C. § 158(d) or 28 U.S.C. § 1291.” Lundell v. Anchor Constr. Specialists, Inc. (In re Lundell), 223 F.3d 1035, 1038 (9th Cir. 2000); see also Stanley v. Crossland, Crossland, Chambers, MacArthur & Lástrete (In re Lakeshore Vill. Resort, Ltd.), 81 F.3d 103, 106 (9th Cir.1996). “However, a district court’s order is ordinarily not final ‘when the district court remands for further factual findings related to a central issue raised on appeal.’ ” Lundell, 223 F.3d at 1038 (quoting Bonner Mall P’ship v. U.S. Bancorp Mortgage Co. (In re Bonner Mall P’ship), 2 F.3d 899, 904 (9th Cir.1993)). “Nevertheless, we have taken a pragmatic approach in determining finality in light of the unique nature of bankruptcy proceedings where a district court reverses a bankruptcy court decision and remands for further proceedings.” Id. (internal quotation marks omitted). In certain instances, we will deem such orders final. In Stanley, we drew on prior case law to identify four factors relevant in determining whether a district court’s decision remanding a case to the bankruptcy court is a final decision under § 158(d): (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. 81 F.3d at 106 (citing Vylene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.), 968 F.2d 887, 895-96 (9th Cir.1992)). In recent cases we have employed a more liberal approach to determining finality. In North Slope Borough v. Barstow (In re Bankr. Estate of Markair, Inc.), 308 F.3d 1057, 1059-60 (9th Cir.2002), and Lundell, 223 F.3d at 1038, we applied the two-factor test set forth" }, { "docid": "17448767", "title": "", "text": "as permitting the partial discharge of student debt. Saxman v. U.S. Dep’t of Educ. (In re Saxman), 263 B.R. 342 (W.D.Wash.2001). APPELLATE JURISDICTION Saxman initially contends that the district court’s decision to vacate the bankruptcy court’s order and remand for further proceedings was not a final decision and therefore not appealable. Under 28 U.S.C. § 158(d), this court has jurisdiction to hear appeals “from all final decisions, judgments, orders, and decrees” entered by a district court on appeal from a bankruptcy court. Because of the unique nature of bankruptcy proceedings, we apply a pragmatic approach to determining finality. Vylene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.), 968 F.2d 887, 894-95 (9th Cir.1992). The factors considered in determining finality include: (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) systemic interest in preserving the bankruptcy court’s role as factfinder; and (4) whether further delay would cause either party irreparable harm. Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 2003 WL 1090176, *5 (9th Cir. Mar.13, 2003); Scovis v. Henrichsen (In re Scovis), 249 F.3d 975, 980 (9th Cir.2001); In re Vylene Enters., Inc., 968 F.2d at 895-96. In North Slope Borough v. Barstow (In re MarkAir, Inc.), 308 F.3d 1057 (9th Cir.2002), we summarized the law as follows: If the matters on remand concern primarily factual issues about which there is no dispute, and the appeal concerns primarily a question of law, then the policies of judicial efficiency and finality are best served by our resolving the question now. On the other hand, if the district court remands for further factual findings related to a central issue raised on appeal, the district court’s decision is usually not final. Even when the remand involves factfinding on a central issue, we may nonetheless exercise jurisdiction if that issue is legal in nature and its resolution either (1) could dispose of the case or proceedings and obviate the need for factfinding; or (2) would materially aid the bankruptcy court in reaching its disposition on remand. Id. at 1060 (internal quotation marks and citations omitted). In the present case," }, { "docid": "13387795", "title": "", "text": "at 904; see also Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895 (9th Cir.1992). Although we ordinarily lack jurisdiction when the lower appellate decision remands for further factual findings related to a central issue raised on appeal, we may assert jurisdiction if the appellate “issue is legal in nature and its resolution either 1) could dispose of the case or pro ceeding and obviate the need for factfinding; or 2) would materially aid the bankruptcy court in reaching its disposition on remand.” Bonner, 2 F.3d at 904 (citing King v. Stanton (In re Stanton), 766 F.2d 1283, 1288 n. 8 (9th Cir.1985) and Farm Credit Bank v. Fowler (In re Fowler), 903 F.2d 694, 696 (9th Cir.1990)). The Bonner provision for review of legal questions that may obviate the need for further factual proceedings is applicable in this case. If we uphold the bankruptcy court’s ruling that a complaint is necessary within the time period established by Rule 4004 and reinstate its legal conclusion that the memorandum asserting the self-executing character of 11 U.S.C. § 1141(d)(3) cannot be interpreted as an informal complaint objecting to the discharge of Dominguez’ debt, then no further factual proceedings will be necessary, and the Millers will have no relief from the confirmation of the Trustee’s Plan. Therefore, we have jurisdiction to review this appeal pursuant to 28 U.S.C. § 158(d). II. Applicability of Rule 4004(a) Section 1141(d)(3) establishes the criteria for an exception to the usual rule that confirmation of a reorganization plan discharges a chapter 11 debtor’s obligations, incorporating by reference the requirements of section 727(a). § 1141(d)(3). The BAP affirmed the bankruptcy court’s decision that the procedural rules validly implement this provision by providing for an adversary proceeding, Rule 7001(4), which must be commenced by the filing of a complaint objecting to the individual chapter 11 debtor’s discharge, Rule 7003, “not later than the first date set for the hearing on confirmation,” Rule 4004(a). Extensions require a noticed motion filed prior to the expiration of the time for filing the complaint. Rule 4004(b). Persuasive arguments" }, { "docid": "15125264", "title": "", "text": "finality in light of the unique nature of bankruptcy proceedings where a district court reverses a bankruptcy court decision and remands for further proceedings.” Id. (internal quotation marks omitted). In certain instances, we will deem such orders final. In Stanley, we drew on prior case law to identify four factors relevant in determining whether a district court’s decision remanding a case to the bankruptcy court is a final decision under § 158(d): (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. 81 F.3d at 106 (citing Vylene Enters., Inc. v. Naugles, Inc. (In re Vylene Enters., Inc.), 968 F.2d 887, 895-96 (9th Cir.1992)). In recent cases we have employed a more liberal approach to determining finality. In North Slope Borough v. Barstow (In re Bankr. Estate of Markair, Inc.), 308 F.3d 1057, 1059-60 (9th Cir.2002), and Lundell, 223 F.3d at 1038, we applied the two-factor test set forth in Bonner Mall. The test asks whether the central issue raised on appeal “is legal in nature and its resolution either (1) could dispose of the case or proceedings and obviate the need for factfinding; or (2) would materially aid the bankruptcy court in reaching its disposition on remand.” Lundell, 223 F.3d at 1038 (citing Bonner Mall, 2 F.3d at 904); see also Saxman v. Educ. Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1171-72 (9th Cir.2003) (applying the Vyl-ene four-factor test and the Bonner Mall two-factor test interchangeably); Alexander v. Compton (In re Bonham), 229 F.3d 750, 763 (9th Cir.2000) (“We have applied two related balancing tests in determining finality, both in conjunction and separately.”). We accept jurisdiction here. The appeal concerns primarily a question of law: Whether the bankruptcy court properly applied the burden-of-proof rubric governing tax claims. Resolution of that question will materially aid the bankruptcy court’s determination of the extent to which the IRS’s claim should be allowed. Although the remand to the bankruptcy court involves factual matters, we have" }, { "docid": "22032302", "title": "", "text": "bankruptcy court is not final under either standard. Ill Stanton held that when an intermediate appellate court remands a case to the bank-ruptey court, “the appellate process likely will be much shorter if we decline jurisdiction and await ultimate review on all the combined issues.” Stanton, 766 F.2d at 1287-88 (internal quotations omitted). This conclusion follows naturally upon consideration of the policies furthered by the rule of finality, such as maintaining the proper relationship between trial and appellate courts. See id. at 1287; Sambo’s Restaurants v. Wheeler (In re Sambo’s Restaurants, Inc.), 754 F.2d 811, 814-15 (9th Cir.1985). In dicta, Stanton stated that where a case is remanded for additional fact-finding and involves a central legal issue, appellate jurisdiction may obviate the need for fact-finding or materially aid the disposition of the case on remand. Stanton, 766 F.2d at 1288 n. 8. Stanton did not propose this dicta as an independent test for determining whether we have jurisdiction under section 158(d). Nor did Stanton include a consideration of the policies embodied in the rule of finality. Nevertheless, Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988), applied Stanton’s dicta and held that a BAP decision reversing a final order of the bankruptcy court and remanding for reconsideration of the proper test to determine “substantial abuse” under 11 U.S.C. § 707(b) was appealable under section 158(d). Kelly emphasized that in addition to the considerations in Stanton, the policies of judicial efficiency and finality were best served by resolving the issues presented before remand. Id. Subsequent to Kelly, the Supreme Court decided Germain. Under the direction of Germain, Vylene refined Stanton and Kelly and set forth the considerations we should balance in determining whether a district court’s decision remanding a case to the bankruptcy court is a final decision under section 158(d): (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. Vylene, 968 F.2d at 895-96. We applied Vylene in Bonner Mall" }, { "docid": "10023759", "title": "", "text": "have balanced the policies of avoiding piecemeal appeals and enhancing judicial efficiency. Compare In re Fowler, 903 F.2d 694 (9th Cir.1990) (reversing district court’s substitution of its cramdown interest rate for that selected by the bankruptcy court and remanding to the bankruptcy court for factfinding to determine a proper rate) and Kelly, 841 F.2d 908 (legal issues would predominate on remand in determining priority of a debt so review legal issues now) and Pizza of Hawaii, Inc. v. Shakey’s, Inc. (In re Pizza of Hawaii, Inc.), 761 F.2d 1374 (9th Cir.1985) (affirming district court’s determination that a creditor should be able to file a claim, undoing the bankruptcy court’s confirmation of a reorganization plan) with Stanton, 766 F.2d 1283 (refusing jurisdiction when bankruptcy appellate panel remanded for factual development of issues involved in a counterclaim that was improperly dismissed by the bankruptcy court) and In re Martinez, 721 F.2d 262 (9th Cir.1983) (refusing jurisdiction when bankruptcy appellate panel remanded for factual development on form of tenancy in which debtors held property). Our cases demonstrate a great concern for impairment of property rights, whether caused by substantive or procedural mecha nisms, particularly where irreparable harm might result. A determination to develop a unique concept of finality for bankruptcy appeals of course does not mean that every bankruptcy order is final and appealable when entered. Just as some orders have been found final, others have been found nonfinal and will continue to be found nonfinal. Wise development and application of the bankruptcy concept of finality will require a sophisticated knowledge of substantive bankruptcy law, bankruptcy procedure, and actual bankruptcy administration. 16 Charles A. Wright et al., § 3926, at 118 (Supp.1991). 3 Application of Liberal Finality Standards to Vylene’s Appeal As a threshold matter, we observe that Vylene suffers no impairment to its property rights by virtue of the district court's order. Further, from the standpoint of bankruptcy procedure and administration, we see no reason why Vylene should have an automatic appeal of the core versus otherwise related proceeding issue. See Dunkley v. Rega Properties (In re Rega Properties), 894 F.2d 1136," }, { "docid": "17139980", "title": "", "text": "the bankruptcy court decision to federal district court, arguing that the trial court had wrongly placed upon him the burden of proving that he had not entered into a partnership agreement with the Hawkins. The district court agreed. It held that the bankruptcy court “erred in placing the burden of proof on the debtor” by requiring him not only to “rebut the presumption of a valid claim but ... also required [him] to prove that he had not formed the requisite intent to form a partnership.” It also noted that it had been “hampered in considering this matter by the lack of specific findings of fact” in the bankruptcy court’s oral decision. The district court remanded the action to bankruptcy court for more specific findings of fact and for further proceedings to apply the correct burden of proof. Claimants appealed. II We have jurisdiction to review final orders of a district court acting in its bankruptcy appellate capacity under either 28 U.S.C. § 158(d) or 28 U.S.C. § 1291. See Stanley v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore Village Resort, Ltd.), 81 F.3d 103, 105 (9th Cir.1996). A district court renders a final order when it affirms or reverses a bankruptcy court’s final order. See Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895 (9th Cir.1992). However, a district court’s order is ordinarily not final “when the district court remands for further factual findings related to a central issue raised on appeal.” Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 904 (9th Cir.1993). Nevertheless, we have taken a “pragmatic approach” in determining finality in light of the “unique nature” of bankruptcy proceedings where a district court reverses a bankruptcy court decision and remands for further proceedings. See id. at 903-04. In such cases, we have balanced several policies in determining whether a remand order may be considered final: “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) systemic interest in preserving the bankruptcy court’s role as the finder of fact; and" }, { "docid": "17139981", "title": "", "text": "MacArthur & Lastreto (In re Lakeshore Village Resort, Ltd.), 81 F.3d 103, 105 (9th Cir.1996). A district court renders a final order when it affirms or reverses a bankruptcy court’s final order. See Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895 (9th Cir.1992). However, a district court’s order is ordinarily not final “when the district court remands for further factual findings related to a central issue raised on appeal.” Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 904 (9th Cir.1993). Nevertheless, we have taken a “pragmatic approach” in determining finality in light of the “unique nature” of bankruptcy proceedings where a district court reverses a bankruptcy court decision and remands for further proceedings. See id. at 903-04. In such cases, we have balanced several policies in determining whether a remand order may be considered final: “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” Walthall v. U.S., 131 F.3d 1289, 1293 (9th Cir.1997) (internal quotation marks and citations omitted). We have oft considered in the context of the Vylene analysis two narrow exceptions to the finality rule as set forth in Bonner Mall. See, e.g., Walthall, 131 F.3d at 1293; Foothill Capital Corp. v. Clare’s Food Market (In re Coupon Clearing Service, Inc.), 113 F.3d 1091, 1098 (9th Cir.1997). In Bonner Mall, we held that we could assert jurisdiction even though a district court has remanded a matter for factual findings on a central issue if that issue is legal in nature and its resolution either (1) could dispose of the case or proceedings and obviate the need for fact-finding; or (2) would materially aid the bankruptcy court in reaching its disposition on remand. See In re Bonner Mall, 2 F.3d at 904 (citing King v. Stanton (In re Stanton), 766 F.2d 1283, 1288 n. 8 (9th Cir.1985)); see also Dominguez v. Miller (In re Dominguez), 51 F.3d 1502," }, { "docid": "8400044", "title": "", "text": "The Trustee did not move to stay the BAP’s judgment. In February 1998, the bankruptcy court, having reinstated Padilla’s petition and proceeded with the bankruptcy, discharged Padilla’s debts and closed the case. The Trustee did not object to the discharge. II. JURISDICTION OVER THE APPEAL OF THE BAP’S ORDER This Court has jurisdiction over this appeal only if both the bankruptcy court’s order dismissing Padilla’s bankruptcy petition and the BAP’s order to reverse and remand are final orders. See 28 U.S.C. § 158(d); Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988). The bankruptcy court’s order dismissing Padilla’s bankruptcy petition is a final order. See id. (stating that “a dismissal of a debtor’s bankruptcy petition is final, terminating, as it does, all litigation in the case”). A bankruptcy appellate panel’s order is final if it affirms or re-verses a final bankruptcy court order. See id. However, where the panel’s order reverses and remands the matter, this Circuit has applied a four-factor- test to determine whether the order is final. See Stanley v. Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore Village Resort, Ltd.), 81 F.3d 103 (9th Cir.1996). The factors considered are “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” Id. at 106 (citing Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895-96 (9th Cir.1992), vacated on other grounds, 90 F.3d 1472 (9th Cir.1996)). While the court has not always explicitly considered these factors, determination of a remanding decision’s finality must be based on analysis of these factors. See Lakeshore Village, 81 F.3d at 107; Walthall v. United States, 131 F.3d 1289, 1293 (9th Cir.1997) (holding district court’s decision not final because two factors in the threshold Lakeshore Village bankruptcy finality test weighed against finality). Here, the four-factor test establishes the BAP’s order as a final order: three of the four Lakeshore Village factors favor finality and the fourth is neutral. First," }, { "docid": "18797247", "title": "", "text": "section 1291. Vylene, 968 F.2d at 893-94. Under Ninth Circuit law, if the district court affirms or reverses a final bankruptcy court order, its order is final. King v. Stanton (In re Stanton), 766 F.2d 1283, 1287 (9th Cir.1985). However, difficult questions regarding finality sometimes arise when a district court reverses a final order of a bankruptcy court and remands. Vylene, 968 F.2d at 895. In such circumstances we balance two important policies: avoiding piecemeal appeals and enhancing judicial efficiency. Id.; Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988). We also consider the systemic interest in preserving the bankruptcy court’s role as the finder of fact. Stanton, 766 F.2d at 1287. On the basis of our analysis of these factors, we have concluded that when the district court remands for further factual findings related to a central issue raised on appeal, its order is ordinarily not final and we lack jurisdiction. Id. at 1286. However, Stanton suggests that we should assert jurisdiction even though a district court has remanded a matter for factual findings on a central issue if that issue is legal in nature and its resolution either 1) could dispose of the case or proceeding and obviate the need for factfinding; or 2) would materially aid the bankruptcy court in reaching its disposition on remand. 766 F.2d at 1288 n. 8; see also Farm Credit Bank of Spokane v. Fowler (In re Fowler), 903 F.2d 694, 696 (9th Cir.1990) (citing second Stanton criterion with approval). We believe that the Stanton principle is sound and we adopt it here. The present case falls squarely within the first Stanton criterion. The central question is a legal one that is clearly potentially dispositive. It involves the very existence of the rule pursuant to which the bankruptcy court would be required to make factual findings on remand. If we hold that the new value exception no longer exists, no further factual proceedings will be necessary and Bancorp will be entitled to the relief it seeks as a matter of law. The instant case presents a situation analogous to" }, { "docid": "8400045", "title": "", "text": "Crossland, Crossland, Chambers, MacArthur & Lastreto (In re Lakeshore Village Resort, Ltd.), 81 F.3d 103 (9th Cir.1996). The factors considered are “(1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm.” Id. at 106 (citing Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895-96 (9th Cir.1992), vacated on other grounds, 90 F.3d 1472 (9th Cir.1996)). While the court has not always explicitly considered these factors, determination of a remanding decision’s finality must be based on analysis of these factors. See Lakeshore Village, 81 F.3d at 107; Walthall v. United States, 131 F.3d 1289, 1293 (9th Cir.1997) (holding district court’s decision not final because two factors in the threshold Lakeshore Village bankruptcy finality test weighed against finality). Here, the four-factor test establishes the BAP’s order as a final order: three of the four Lakeshore Village factors favor finality and the fourth is neutral. First, regardless of the court’s decision on this appeal, piecemeal litigation is not a concern because no further appeal to this court on the Padilla bankruptcy is foreseeable. In the event the court reverses the BAP, the discharge will be reversed and Padilla’s bankruptcy petition will be dismissed. Nothing in, that series of events will give rise to an appeal: the creditors stand to benefit by the dismissal and are therefore unlikely to appeal and Padilla has no foreseeable ground on which to appeal. Should the court affirm the BAP’s holding that Padilla’s petition should not have been dismissed by the bankruptcy court, there appears to be nothing that could be appealed; the bankruptcy court has already entered an Order of Discharge and closed the file without a subsequent appeal. Cf. Walthall, 131 F.3d at 1293-94 (finding a potential for piecemeal litigation because there would undoubtedly be an appeal of an additional issue if the court found for the debtors); Lakeshore Village, 81 F.3d at 107 (finding potential for piecemeal litigation because another appeal would be" }, { "docid": "10215488", "title": "", "text": "a subsequent final order of the bankruptcy court. Thus the 1983 ruling was a prospective one affecting the priority of a potential claim, and further activity of the parties was required before their rights were conclusively determined. Four Seasons points out that this court has repeatedly held that the finality rules are to be given additional flexibility in the context of bankruptcy proceedings. See, e.g., In re Victoria Station, Inc., 840 F.2d 682, 683 (9th Cir.1988); In re Martinez, 721 F.2d 262, 265 (9th Cir.1983); In re Mason, 709 F.2d 1313, 1316 (9th Cir. 1983). We have observed that “certain proceedings in a bankruptcy case are so distinctive and conclusive either to the rights of individual parties or the ultimate outcome of the case that final decisions as to them should be appealable as of right.” Mason, 709 F.2d at 1317. Thus, in addition to the conventional test of finality, we have adopted in bankruptcy proceedings a practical test “ ‘that emphasizes the need for immediate review, rather than whether the order is technically interlocutory.’ ” In re Allen, 896 F.2d 416, 418 (9th Cir.1990) (quoting In re 405 N. Bedford Drive Corp., 778 F.2d 1374, 1377 (9th Cir.1985)). This “pragmatic approach” to finality in bankruptcy focuses on whether the decision appealed from “effectively determined the outcome of the case.” Martinez, 709 F.2d at 1318. Specifically, we have held that a bankruptcy order is appealable where it 1) resolves and seriously affects substantive rights and 2) finally determines the discrete issue to which it is addressed. Allen, 896 F.2d at 418-19. Traditional finality concerns still dictate, however, that “[w]e avoid having a case make two complete trips through the appellate process.” In re Vylene Enters., 968 F.2d 887, 895 (9th Cir.1992). Four Seasons claims that the 1983 order seriously affected its substantive rights because Four Seasons relied on the trustee’s failure to appeal the 1983 bankruptcy order in deciding to pursue its damage award through litigation. It asserts that it probably would have settled or abandoned its damages claim if the claim had not been secured, rather than engaging in" }, { "docid": "13387808", "title": "", "text": "confidence in his strategy. The rules set deadlines, but they also provide that deficient pleadings may suffice if appropriately amended. In this case, the Discharge Memorandum suffices as a complaint, and the relation back doctrine is clearly applicable. Because Dominguez has not relied to his detriment on the Millers’ contention that the Discharge Memorandum did not constitute a complaint initiating an adverse action, the Millers cannot be equitably estopped from now arguing that it should be so considered. Accordingly, we affirm the BAP’s reversal of the bankruptcy court on this issue. CONCLUSION We hold, therefore, that a complaint is necessary to object to dischargeability of an individual debtor under section 1141(d)(3). We agree with the BAP that the Millers’ Discharge Memorandum, though deficient, satisfies the requirement under Rule 4004(a) for a timely complaint and that the later-filed declaratory judgment complaint relates back to that complaint. Because these rulings conclusively determine this case, we do not address any other issues. Accordingly, we affirm the BAP’s reversal of the bankruptcy court’s decision and remand to the BAP for remand to the bankruptcy court for further proceedings in accordance with this opinion. AFFIRMED. . Unless otherwise noted, all references to \"chapter,\" \"Code,” or \"section” are to the Bankruptcy Code, 11 U.S.C. § 101-1330, and all references to \"Rule” are to the Federal Rules of Bankruptcy Procedure 1001-9035. . 28 U.S.C. § 158(d) is not the exclusive source of appellate jurisdiction over bankruptcy cases because circuit courts may hear interlocutory bankruptcy appeals from district courts acting in appellate capacity under 28 U.S.C. § 1292(b). Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (addressing a split among the circuits regarding applicability of section 1292(b) to bankruptcy jurisdiction). However, interlocutory review is not available under section 1292(b) for appeals from a bankruptcy appellate panel. Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 890 n. 4 (9th Cir.1992); 28 U.S.C. § 1292(b) (restricting jurisdiction by its terms to appeals from district courts). . The text in relevant part is as follows: The confirmation of" }, { "docid": "22032303", "title": "", "text": "finality. Nevertheless, Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988), applied Stanton’s dicta and held that a BAP decision reversing a final order of the bankruptcy court and remanding for reconsideration of the proper test to determine “substantial abuse” under 11 U.S.C. § 707(b) was appealable under section 158(d). Kelly emphasized that in addition to the considerations in Stanton, the policies of judicial efficiency and finality were best served by resolving the issues presented before remand. Id. Subsequent to Kelly, the Supreme Court decided Germain. Under the direction of Germain, Vylene refined Stanton and Kelly and set forth the considerations we should balance in determining whether a district court’s decision remanding a case to the bankruptcy court is a final decision under section 158(d): (1) the need to avoid piecemeal litigation; (2) judicial efficiency; (3) the systemic interest in preserving the bankruptcy court’s role as the finder of fact; and (4) whether delaying review would cause either party irreparable harm. Vylene, 968 F.2d at 895-96. We applied Vylene in Bonner Mall and Dominguez v. Miller (In re Dominguez), 51 F.3d 1502 (9th Cir.1995) {Dominguez). In Bonner Mall, we recognized that Vylene set forth the proper approach for determining whether we could exercise jurisdiction. For additional guidance, however, we referred to the Stanton dicta and considered whether exercising our jurisdiction would obviate the need for further factfinding and assist the bankruptcy court in reaching its disposition on remand. Bonner Mall, 2 F.3d at 904. Determining that both of these considerations supported our jurisdiction, we then summarily asserted that under the particular circumstances presented in Bonner Mall, the “policy of judicial economy ... strongly out-weighted] the need to avoid piecemeal appeals.” Id. at 905. Without further analysis of the governing considerations set forth in Vylene, we assumed jurisdiction. Dominguez again recognized the four considerations mandated in Vylene. Dominguez, 51 F.3d at 1506. As in Bonner Mall, Dominguez also framed our analysis in terms of the Stanton dicta and assumed jurisdiction. Id. at 1506-07. However, by choosing to focus on the Stanton dicta, Dominguez failed to analyze explicitly any" }, { "docid": "13387794", "title": "", "text": "approach” stem from the “unique nature” of bankruptcy proceedings. Bonner Mall Partnership v. U.S. Bancorp Mortgage Co. (In re Bonner Mall Partnership), 2 F.3d 899, 903 (9th Cir.1993), cert. dismissed, — U.S. -, 114 S.Ct. 681, 126 L.Ed.2d 648. (1994). The bankruptcy court’s dismissal of the Millers’ declaratory judgment action is final and appealable: it terminated all possibility of litigation on the merits of the Millers’ objection to discharge. E.g., Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988). The question then is whether a BAP’s order reversing the bankruptcy court’s dismissal is final and appealable under 28 U.S.C. § 158(d). The effect of the BAP’s decision is to remand to reopen proceedings in the bankruptcy court for a determination on the merits of the Millers’ claim that the debt is nondischargeable. When a lower appellate decision reverses a final order and remands, we consider the “systemic interest in preserving the bankruptcy court’s role as the finder of fact,” avoidance of piecemeal litigation, and overall enhancement of judicial efficiency. Bonner, 2 F.3d at 904; see also Vylene Enterprises, Inc. v. Naugles, Inc. (In re Vylene Enterprises, Inc.), 968 F.2d 887, 895 (9th Cir.1992). Although we ordinarily lack jurisdiction when the lower appellate decision remands for further factual findings related to a central issue raised on appeal, we may assert jurisdiction if the appellate “issue is legal in nature and its resolution either 1) could dispose of the case or pro ceeding and obviate the need for factfinding; or 2) would materially aid the bankruptcy court in reaching its disposition on remand.” Bonner, 2 F.3d at 904 (citing King v. Stanton (In re Stanton), 766 F.2d 1283, 1288 n. 8 (9th Cir.1985) and Farm Credit Bank v. Fowler (In re Fowler), 903 F.2d 694, 696 (9th Cir.1990)). The Bonner provision for review of legal questions that may obviate the need for further factual proceedings is applicable in this case. If we uphold the bankruptcy court’s ruling that a complaint is necessary within the time period established by Rule 4004 and reinstate its legal conclusion that the memorandum asserting" } ]

[ { "docid": "6282023", "title": "", "text": "PER CURIAM. Ida Bianchi, the claimant, is appealing from the judgment of the district court upholding a final determination by the Secretary of Health and Human Services that she is not eligible to receive Supplemental Security Income (SSI) under Title XVI of the Social Security Act because she is not disabled. Mrs. Bianchi applied for SSI benefits in June of 1980, listing as impairments a hiatus hernia, high blood pressure, depression, nerves, and past tuberculosis. Between the time of her initial application and the adjudicatory hearing, Mrs. Bianchi developed an additional ailment of a left Morton’s Neuroma causing pain in her left forefoot. The Administrative Law Judge concluded that Mrs. Bianchi did not suffer from a severe impairment as defined in 20 C.F.R. § 416.920. The Appeals Council concurred. The sole question presented for our review is whether substantial evidence supports the Secretary’s finding that the claimant is not severely impaired. Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 7 (1st Cir.1982). The record supports the Secretary’s conclusion that Mrs. Bianchi was not severely impaired by her physical ailments. The tuberculosis from which the claimant had suffered as a child was considered “healed.” Her blood pressure had returned to normal. Mrs. Bianchi offered no evidence to suggest that her esophageal and digestive problems were in any way disabling. See Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir.1969) (plaintiff has burden of showing she is disabled). To the contrary, the evidence demonstrated that her disorders had responded well to medication and were under control. Although the claimant had developed a “mild” arthritis, her grip remained strong and her range of motion was unimpaired. The Secretary is not required to take the claimant’s assertions of pain at face value. Burgos Lopez v. Secretary of Health and Human Services, 747 F.2d 37, 40 (1st Cir.1984). Two physicians who reviewed the medical records concurred in the Secretary’s conclusion that Mrs. Bianchi was not physically impaired. The left Morton’s Neuroma, which appeared to be the cause of plaintiff’s discomfort when standing or walking, was of recent onset at the time" } ]

[ { "docid": "13162432", "title": "", "text": "receiving Title XVI disability benefits. 20 C.F.R. § 416.920(f). 3. Subjective Complaints of Pain With respect to plaintiffs complaints of pain and the severity of her symptoms, the ALJ dutifully considered the record in light of Avery v. Secretary of Health and Human Services, 797 F.2d 19 (1st Cir.1986). In Avery, the Court of Appeals for the First Circuit outlined the following factors that should be considered in determining whether alleged pain constitutes an additional limitation upon a claimant’s ability to perform a substantial gainful activity: 1) the nature, location, onset, duration, frequency, radiation, and intensity of any pain; 2) precipitating and aggravating factors (e.g., movement, activity, environmental conditions); 3) type, dosage, effectiveness, and adverse side-effects of any pain medication; 4) treatment, other than medication, for pain relief; 5) functional restrictions; and 6) the claimant’s daily activities. Avery, 797 F.2d at 29. Perhaps most importantly, multiple complaints of pain, by themselves, cannot render Ms. Martinez disabled under the Act. “A claimant’s statement as to [her] pain shall not alone be conclusive evidence of a disability.” Avery, 797 F.2d at 20. Rather, there must be: medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment ... which could reasonably be expected to produce the pain or other symptoms alleged ... 42 U.S.C. § 423(d)(5)(A). A claimant establishes a disability based on allegations of pain only if the medical findings, when considered with all the evidence ... (including statements of the individual or his physician as to the intensity or persistence of such pain ... which may reasonably be accepted as consistent with the medical signs and findings) ... lead to a conclusion that the individual is under a disability. 42 U.S.C. § 423(d)(5)(A). In the case at bar, the ALJ properly considered the required factors and, in light thereof and of the entire record, the ALJ concluded that Ms. Martinez’s assertions of disabling pain were neither consistent with the other evidence nor credible. Determining issues of credibility is the responsibility of the ALJ, and such determination is given great deference" }, { "docid": "19061115", "title": "", "text": "laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of ■such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. 42 U.S.C. § 423(d)(5)(A). The First Circuit has held that “complaints of pain need not be precisely corroborated by objective findings, but they must be consistent with medical findings.” Dupuis v. Secretary of Health and Human Services, 869 F.2d 622, 623 (1st Cir.1989) (citing Avery v. Secretary of Health and Human Services, 797 F.2d 19, 21 [1st Cir.1980]; Da Rosa v. Secretary of Health and Human Services, 803 F.2d 24, 26 [1st Cir.1986]); accord Bianchi v. Secretary of Health and Human Services, 764 F.2d 44, 45 (1st Cir.1985) (“The Secretary is not required to take the claimant’s assertions of pain at face value.”) (citing Burgos Lopez v. Secretary of Health and Human Services, 747 F.2d 37, 40 [1st Cir.1984]). Here, the Administrative Law Judge found “a substantial disparity between the claimant’s allegations of pain and the objective medical signs of the record” noting specifically that “medical records from [MCI-Cedar Junction], [Dr. Venna], and [Dr. Rich] do not support the plaintiffs allegations of disabling pain.” (Tr. 73.) Where a claimant’s complaints of pain are a significant factor limiting his ability to work, and those complaints are not fully supported by the medical evidence in the record, the Administrative Law Judge must look further. In accordance with Avery, the Administrative Law Judge reviewed Guy-ton’s “Activities of Daily Living” and “Questionnaire on Pain” reports and “obtain[ed] detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant.” Avery, 797 F.2d at 23 (quoting Secretary of Health and Human Services, Program Operations Manual System, DI T00401.570" }, { "docid": "12799014", "title": "", "text": "the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520(a); accord id. § 416.920(a); see also Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir.1982) (describing the five-step process). Under this process, the analysis of the administrative law judge ends “as soon as a determination of a claimant’s disability vel non is made.” Guyton, 20 F.Supp.2d at 162 n. 7 (citing 20 C.F.R. § 404.1520[a] [“If we can find that you are disabled or not disabled at any point in the review, we do not review your claim further.”]). III. DISCUSSION A. The Commissioner’s Decision Musto argues that the Commissioner’s decision to deny his claim for Social Security disability benefits was not supported by substantial evidence and was based on errors of law. Pl.’s Mem. at 2. First, he asserts that the rejection of his claim of disabling pain by the administrative law judge was improper. Id. at 12, 16. Second, Musto contends that the finding of the administrative law judge that a wide range of sedentary jobs were available to him relied on a flawed assessment by the vocational expert and was not supported by substantial evidence. Id. at 12-13, 16-19. Third, Musto alleges that the administrative law judge failed adequately to develop the record of his depression and the side effects of his medications. Id. at 13, 19-20. 1. Musto’s Subjective Complaints of Pain The regulations establish that in cases such as Musto’s, in which a claimant has a medically-determinable severe physical impairment that is of less severity than the impairments described in Appendix 1 of subpart P of part 404 of the regulations, “the administrative law judge must consider the impact of related symptoms, including pain, on the claimant’s residual functional capacity.” Bazile, 113 F.Supp.2d at 185 (citing 20 C.F.R. § 404.1529[d][4]). Thus, the administrative law judge evaluates the claimant’s subjective complaints of pain and deter mines what probative weight to give to them. This" }, { "docid": "13029937", "title": "", "text": "including pain, and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence as well as other evidence in the record. See 20 C.F.R. § 404.1529; Avery v. Secretary of Health and Human Services, 797 F.2d 19, 23 (1st Cir.1986). A claimant’s statements about her pain or other symptoms will not alone establish disability. 20 C.F.R. § 404.1529(a). There must also be medical evidence to show that the claimant’s impairment(s) could reasonably be expected to produce the pain alleged. 20 C.F.R. § 404.1529(a). At the hearing, Weiler testified that she has anxiety attacks when dealing with supervisors who criticize her work and becomes extremely agitated when she knows that she has to perform tasks that she cannot handle. (Tr. 55-56). Weiler further testified that she has anxiety attacks at least once a day brought on by stress. The anxiety attacks cause her to experience pain in her stomach and tingling down her arms. During the attacks, Weiler’s body shakes. The shaking usually lasts the duration of the attack. (Tr. 56). Weiler also testified that dming the anxiety attacks she has difficulty breathing, and often has to lie down to calm herself. (Tr. 56). Weiler also testified that when she becomes stressed her ability to remember and concentrate decreases. (Tr. 58). She stated that during her last job, she often had problems remembering tasks she was assigned to complete, feared being put on the spot, and sometimes felt anxiety when meeting new people. (Tr. 59). In rejecting Weiler’s complaints of pain, the ALJ concluded that her testimony was not consistent with the medical evidence in the record. (Tr. 20). In evaluating the severity of Weiler’s pain, the ALJ had to make a credibility determination. Although, the ALJ has the power to resolve credibility issues, Ortiz v. Secretary of Health and Human Services, 955 F.2d 765, 769 (1st Cir.1991), that determination must be supported by substantial evidence. Da Rosa v. Secretary of Health and Human Services, 803 F.2d 24, 26 (1st Cir.1986). The ALJ’s decision to reject the functional limitation findings of Drs. Waterman and" }, { "docid": "19061114", "title": "", "text": "complex cases, a person or persons with specialized knowledge would be helpful.”); S.S.R. 83-14 (“Where [the Administrative Law Judge] does not have a clear understanding of the effects of additional limitations on the job base, the services of a [vocational specialist] will be necessary.”). 2. Evaluating the Claim of Disabling Pain In reviewing the decision to not accept Guyton’s allegations of.disabling back pain, “the credibility determination by the [Administrative Law Judge], who observed the claimant, evaluated his demeanor, and considered how that testimony fit in with the rest of the evidence, is entitled to deference, especially when supported by specific findings.” Frustaglia v. Secretary of Health and Human Services, 829 F.2d 192, 195 (1st Cir.1987); see also, Suranie v. Sullivan, 787 F.Supp. 287, 290-91 (D.R.I.1992). The guidelines for the assessment of a claimant’s subjective claims of disabling pain state that: [a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of ■such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. 42 U.S.C. § 423(d)(5)(A). The First Circuit has held that “complaints of pain need not be precisely corroborated by objective findings, but they must be consistent with medical findings.” Dupuis v. Secretary of Health and Human Services, 869 F.2d 622, 623 (1st Cir.1989) (citing Avery v. Secretary of Health and Human Services, 797 F.2d 19, 21 [1st Cir.1980]; Da Rosa v. Secretary of Health and Human Services, 803 F.2d 24, 26 [1st Cir.1986]); accord Bianchi v. Secretary of Health and Human Services, 764 F.2d" }, { "docid": "9407403", "title": "", "text": "that the plaintiff was not disabled by pain is supported by substantial evidence. When the degree of pain alleged by the claimant significantly conflicts with the medical findings, the AU must obtain “ ‘detailed descriptions of daily activities by directing specific inquiries about the pain and its effect to the claimant, his/her physicians from whom medical evidence is being requested, and other third parties who would be likely to have such knowledge.’ ” Avery v. Secretary of Health and Human Services, 797 F.2d 19, 23 (1st Cir.1986), quoting the Secretary’s Program Operations Manual System (“POMS”), DI T00401.570. The AU did engage in such an inquiry. The medical record also contained discussions of the plaintiff’s pain symptoms, enabling the AU to determine that the plaintiff had reported varying symptoms to numerous doctors who were unable to ascertain the cause for the level of pain complained of by the plaintiff. This Court must defer to the credibility determination made by an AU who has heard testimony from the plaintiff while observing the demeanor of the plaintiff, and has balanced the testimony with other evidence. Frustaglia v. Secretary of Health and Human Services, 829 F.2d 192, 195 (1st Cir.1987), citing DaRosa v. Secretary of Health and Human Services, 803 F.2d at 26. While the AU may not disregard the plaintiff’s complaints of pain simply because they are not corroborated by medical evidence, DaRosa v. Secretary, 803 F.2d at 25-26, the plaintiff’s own testimony describing the pain is not conclusive evidence of disability. 42 U.S.C. § 423(d)(5)(A); Bianchi v. Secretary of Health and Human Services, 764 F.2d 44, 45 (1st Cir.1985) (plaintiff’s self-serving allegations alone will not suffice for a finding of disability). In this case, substantial evidence supports the AU’s finding that the plaintiff’s pain, when viewed in the context of a musculoskeletal disorder, does not prevent the plaintiff from engaging in light work. Yet, the record is not complete as to the AU’s finding that the combination of a somatoform disorder and a severe emotional impairment would not foreclose the plaintiff from the broad range of jobs in the light level of" }, { "docid": "10619069", "title": "", "text": "was inconsistent with his residual functional capacity assessment. Rather, he explained that he was rejecting it to the extent it was inconsistent with his assessment and then went on to explain why he was rejecting it. Barry v. Astrue, No. CV-09-1677-PHX-NYW, 2010 WL 3168630, *10 (D.Ariz. Aug. 10,2010). So here. In this Circuit, in evaluating subjective symptoms, the hearing officer must “investigate all avenues presented that relate to subjective complaints.” Avery v. Sec’y of Health & Human Servs., 797 F.2d 19, 28 (1st Cir.1986). Factors the hearing officer must consider include: (1) The nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) Precipitating and aggravating factors (e.g., movement, activity, environmental conditions); (3) Type, dosage, effectiveness, and adverse side-effects of any pain medication; (4) Treatment, other than medication, for relief of pain; (5) Functional restrictions; and (6) The claimant’s daily activities. Id. at 29. The hearing officer, however, need not “slavishly discuss all factors relevant to analysis of a claimant’s credibility and complaints of pain in order to make a supportable credibility finding.” Vining v. Astrue, 720 F.Supp.2d 126, 138 (D.Me.2010). Here, the hearing officer detailed the extent of Amaral’s alleged physical and mental symptoms, medications, functional limitations, and daily activities, as required by Avery. Admin. R. at 16-17. The hearing officer then concluded that Amaral’s noncompliance in regulating his diabetes was “clearly inconsistent” with his allegations of severe symptoms and disabling limitations. Id. at 18. The hearing officer made his negative credibility finding after considering all of the evidence in the record, which includes Amaral’s noncompliance in regulating his diabetes. Where a hearing officer observes and evaluates a claimant, and makes specific findings, his credibility finding is entitled to deference. Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir.1987). Accordingly, the hearing officer’s negative credibility determination is based on substantial evidence and is affirmed. B. Treating Sources Generally, the hearing officer gives more weight to the opinions of examining sources than those of non-examining sources. 20 C.F.R. § 404.1527(d)(1). On issues reserved to the Commissioner, such as residual function capacity findings, examining" }, { "docid": "19061113", "title": "", "text": "diagnosis and/or Intermittent Explosive Disorder. He has some quite sociopathie atti-tudes_” (Tr. 216-17.) Also, there is no consideration of the Social Security Administration’s Psychiatric Review Technique which indicates that Guyton suffers from a severe mental impairment based on mental retardation and a personality disorder. (Tr. 116-124.) Thus, this case must be remanded to the Administrative Law Judge to conduct a mental impairment assessment as required by the Social Security Act and its attendant regulations. The Administrative Law Judge is to conduct the appropriate assessment of whether there is other work that exists in significant numbers in the national economy that the claimant can perform. It is incumbent upon the Administrative Law Judge to determine the effect of Guyton’s mental impairment on the size of the remaining occupational base of light unskilled work. The Administrative Law Judge can make this determination but referral to vocational resource may be helpful or necessary. See S.S.R. 85-15 (“The publications listed in §§ 404.1566 and 416.966 of the regulations will be sufficient vocational resources for relatively simple issues. In more complex cases, a person or persons with specialized knowledge would be helpful.”); S.S.R. 83-14 (“Where [the Administrative Law Judge] does not have a clear understanding of the effects of additional limitations on the job base, the services of a [vocational specialist] will be necessary.”). 2. Evaluating the Claim of Disabling Pain In reviewing the decision to not accept Guyton’s allegations of.disabling back pain, “the credibility determination by the [Administrative Law Judge], who observed the claimant, evaluated his demeanor, and considered how that testimony fit in with the rest of the evidence, is entitled to deference, especially when supported by specific findings.” Frustaglia v. Secretary of Health and Human Services, 829 F.2d 192, 195 (1st Cir.1987); see also, Suranie v. Sullivan, 787 F.Supp. 287, 290-91 (D.R.I.1992). The guidelines for the assessment of a claimant’s subjective claims of disabling pain state that: [a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or" }, { "docid": "17456922", "title": "", "text": "(quoting Social Security Ruling 96 — 7p); see also 20 C.F.R. § 404.1529(c)(3). The ALJ recited the aforementioned relevant factors to consider and applied them to Arruda’s complaints and allegations of pain. At the hearing, he elicited the information that Arruda suffered a fall at work and fully explored her daily activities, including shopping, housework and preparing meals. (Tr. 33, 36-39 & 41-42). He described her medications and the absence of side effects from Vicodin, which, he noted, Arruda takes to relieve the pain. He also noted that she drives occasionally. As is evident from the ALJ’s opinion, he fully recognized his obligations to evaluate Arruda’s pain. (Tr. 20, ¶2). He also fully discharged those obligations. (Tr. 20, ¶¶ 3 & 4); see, e.g., Berrios Lopez v. Secretary of Health and Human Services, 951 F.2d at 429 (ALJ adequately discussed and considered claimant’s pain under Avery noting that she could walk without assistance and drive an automobile); Gordils v. Secretary of Health and Human Services, 921 F.2d at 330 (ALJ described claimant’s daily activities as intact, her ability to walk and drive and her demeanor thereby complying with Avery). The ALJ’s credibility determination, which he supports with specific findings, “is entitled to deference.” Frustaglia v. Secretary of Health and Human Services, 829 F.2d at 195; see also Ortiz v. Secretary of Health and Human Services, 890 F.2d 520, 523 (1st Cir.1989) (“ ‘particular attention” ’ is afforded an ALJ’s “evaluations of complaints of pain in light of their ‘subjective nature’ ”). Given the record, Arruda’s argument that the ALJ failed to adhere to the proper standards in evaluating her pain is unconvincing. Arruda next asserts that the ALJ failed to consider her diabetes as an impairment. Although not discussed at great length in the opinion, the ALJ recognized that Arruda was being treated for diabetes mellitus and alleged a disability from that condition. (Tr. 18 & 19). He also found that the diabetes mellitus constituted a severe medically determinable impairment at step two. Nevertheless, it is true that Dr. Patrick’s notes are replete with references to Arruda’s treatment for diabetes" }, { "docid": "21133154", "title": "", "text": "excessive movement of employees, (A.R. at 254), (2) Plaintiffs position as a senior bank examiner, as well as his role as a loan review officer, allowed for practically unfettered walking when he was not attending to business (A.R. 253-254,257), and (3) there is no dispute that Plaintiff could stand and walk for unlimited amounts of time. Finally, as for Plaintiff’s hand, the Commissioner could properly rely on Dr. Wani’s September 21, 1994 report as well as Plaintiffs own testimony regarding outside activities, such as cleaning, shopping, caring for pets, and driving. In sum, there is substantial evidence that, as of Dr. Wani’s September 21,1994 assessment, Plaintiff was able to resume his past relevant work. C. Plaintiffs Subjective Complaints of Pain Finally, the Court finds that the ALJ properly considered Plaintiffs subjective complaints of pain, at least as of the date of Dr. Wani’s September 21, 1994 assessment, pursuant to Avery v. Secretary of Health & Human Services, 797 F.2d 19 (1st Cir.1986). See 42 U.S.C. § 428(d)(5)(A). In particular, Avery requires the consideration by the ALJ of the following: (1) the nature, location, onset, duration, frequency, radiation, and intensity of pain; (2) any precipitating or aggravating factors; (3) the type, dosage, effectiveness and adverse side-effects of any pain medication; (4) any treatment, other than medication, for the relief of pain; (5) any functional restrictions; and (6) the claimant’s daily activities. Id. at 29. See 20 C.F.R. § 404.1529(e)(3). It is up to the ALJ, however, to make credibility determinations. See Rodriguez, 647 F.2d at 222. See also Gray, 760 F.2d at 374; DaRosa v. Secretary of Health & Human Services, 803 F.2d 24,26 (1st Cir.1986); Bianchi v. Secretary of Health & Human Services, 764 F.2d 44, 45 (1st Cir.1985). The ALJ, in the present matter, thoroughly questioned Plaintiff with regard to his daily activities, functional restrictions, medications, prior work record, and the frequency and duration of pain in conformity with the guidelines set out in Avery. (A.R. at 249-60, 274-89, 355-81.) In particular, the ALJ heard Plaintiff testify that he was unable to engage in heavy household chores or any" }, { "docid": "21645491", "title": "", "text": "(3) any precipitating or aggravating factors; (4) the dosage, effectiveness and side effects of any medication; and (5) the claimant’s functional restrictions. Baker v. Sec’y of Health & Human Services, 955 F.2d 552, 555 (8th Cir.1992); Polaski, 739 F.2d at 1322. Because pain, shortness of breath, weakness, or nervousness, for example, are difficult to measure, the ALJ may not .disregard a claimant’s subjective complaints of pain solely because the objective medical evidence does not fully support them. Polaski, 739 F.2d 1320. Rather, the absence of this evidence is just one of several factors used to evaluate the credibility of the testimony and complaints. The credibility of a claimant’s subjective testimony is primarily for the ALJ to decide, not the courts, but such assessments must be based upon substantial evidence. Baldwin, 349 F.3d at 558; Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir.1988); Benskin, 830 F.2d at 882. The ALJ must make express credibility determinations and set forth the inconsistencies in the record which cause him to reject the plaintiffs complaints. Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir.1992); Ricketts v. Sec’y of Health & Human Services, 902 F.2d 661, 664 (8th Cir.1990). It is not enough that the record contains inconsistencies; the ALJ must specifically demonstrate that he considered all of the evidence. Id. When a plaintiff claims that the ALJ failed to properly consider subjective complaints of pain, the- duty of the court is to ascertain whether the ALJ considered all of the evidence relevant to the plaintiffs complaints of pain under the Po-laski standards and whether the evidence so contradicts the plaintiffs subjective complaints that the ALJ could discount his or her testimony as not credible. Benskin, 830 F.2d at 882. The ALJ made specific findings under these requirements, noting: 1) that Mas-terson has a good work record; 2) her daily activities as noted in the opinion are inconsistent with the extreme complaints of pain; 3) she does not take any narcotic medication; 4) objective tests support only mild to moderate findings; 5) no treating or examining doctors restricted her daily activities. More significantly, the ALJ" }, { "docid": "17456920", "title": "", "text": "of Health and Human Services, 797 F.2d 19 (1st Cir.1986), Arruda next argues that the ALJ failed to follow the proper standards in evaluating Arruda’s subjective complaints of pain. The ALJ did not dis count the entirety of Arruda’s subjective complaints of pain. Instead, he found that she had “impairments that could reasonably be expected to produce the symptoms she alleges.” (Tr. 20). The ALJ nevertheless did not find Arruda fully credible to the extent she described impairments so severe as to preclude all sustained work activity. Where, as here, the degree of alleged pain “ ‘is significantly greater than that which can be reasonably anticipated based on the objective physical findings,’ ” the ALJ should “ ‘obtain detailed descriptions of [the claimant’s] daily activities’ ” and it is “ ‘essential to investigate all avenues presented that relate to subjective complaints.’ ” Avery v. Secretary of Health and Human Services, 797 F.2d at 23 (quoting instructions from the Secretary and finding that such instructions “conform faithfully to the Act”); see also Dedis v. Chater, 956 F.Supp. at 54; Morgan v. Chater, 1996 WL 392144 at * 13 (D.N.H. April 26, 1996). Similarly, Social Security Ruling 96-7p, relied upon by Arruda and issued after Avery, describes evidence relevant to evaluating pain as including: 1. The individual’s daily activities; 2. The location, duration, frequency, and intensity of the individual’s pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual’s functional limitations and restrictions due to pain or other symptoms. Farris v. Barnhart, 2002 WL 449289 at * 3-4 (D.Me. March 25, 2002)" }, { "docid": "12799017", "title": "", "text": "F.2d at 29. A finding that a claimant is not credible “must be supported by substantial evidence,” Da Rosa v. Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir.1986) (per curiam), and “must be bolstered by specific findings as to the relevant evidence considered in determining to disbelieve the claimant,” Pilet v. Apfel, 20 F.Supp.2d 240, 246 (D.Mass.1998). In the instant case, the administrative law judge made reference to the criteria set forth in Avery, Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192 (1st Cir.1987) (per curiam), and Social Security Ruling 88-13, and concluded that Musto’s “complaints of pain are substantially out of proportion to the physiological and anatomical findings of the examining physicians” and that “his complaints of severe, unremitting pain are not credible.” R. at 21. When supported by specific findings, the opinion of an administrative law judge is entitled to great deference. Guyton, 20 F.Supp.2d at 165. In this case, the administrative law judge described his specific findings as follows: Musto does not require any great amount of pain medication; he is able to care for his personal needs; and his daily activities are not severely restricted. Id. Musto alleges that these findings do not constitute “substantial evidence” that he is not credible because the administrative law judge mischaracterized his daily living activities and failed properly to evaluate the effects of his medications. a. Daily Living Activities In finding that Musto’s allegations of pain were not credible, the administrative law judge focused primarily on the nature of Musto’s daily activities. In so doing, the administrative law judge appears to have characterized the evidence in order to put the most positive spin on Musto’s abilities. For example, the administrative law judge stated that Musto “goes for one or two-hour walks around Jamaica Pond or the arboretum.” R. at 21. In contrast, the record indicates that although Musto may attempt to walk for as much as one to two hours at a time on a good day, he sometimes stops to rest because of back pain. Id. at 41-42, 49. The administrative law" }, { "docid": "19061116", "title": "", "text": "44, 45 (1st Cir.1985) (“The Secretary is not required to take the claimant’s assertions of pain at face value.”) (citing Burgos Lopez v. Secretary of Health and Human Services, 747 F.2d 37, 40 [1st Cir.1984]). Here, the Administrative Law Judge found “a substantial disparity between the claimant’s allegations of pain and the objective medical signs of the record” noting specifically that “medical records from [MCI-Cedar Junction], [Dr. Venna], and [Dr. Rich] do not support the plaintiffs allegations of disabling pain.” (Tr. 73.) Where a claimant’s complaints of pain are a significant factor limiting his ability to work, and those complaints are not fully supported by the medical evidence in the record, the Administrative Law Judge must look further. In accordance with Avery, the Administrative Law Judge reviewed Guy-ton’s “Activities of Daily Living” and “Questionnaire on Pain” reports and “obtain[ed] detailed descriptions of daily activities by directing specific inquiries about the pain and its effects to the claimant.” Avery, 797 F.2d at 23 (quoting Secretary of Health and Human Services, Program Operations Manual System, DI T00401.570 [Aug. 1, 1985]). The transcript from the oral hearing also indicates that the Administrative Law Judge conducted an appropriate Avery inquiry into Guyton’s subjective complaints of pain, (Tr. 95-104), before deciding that Guyton was capable of performing “light” work. (Tr. 73.) In concluding that Guyton’s subjective complaints of back pain did not constitute a disability under the Social Security Act, the Administrative Law Judge found his claims of pain not credible. (Tr. 73.) Where the Administrative Law Judge finds subjective evidence of pain not credible, “the Administrative Law Judge must make specific findings as to the relevant evidence [she] considered in determining to disbelieve the appellant.” DaRosa v. Secretary of Health and Human Services, 803 F.2d 24, 26 (1st Cir.1986) (citing Benko v. Schweiker, 551 F.Supp. 698, 704 [D.N.H.1982]). In this case, the Administrative Law Judge makes only a general reference to the record stating that “Claimant’s testimony regarding pain and discomfort is not credible to the extent alleged in light of the evidence of record.” (Tr. 74.) This finding does not satisfy the requirement" }, { "docid": "12799016", "title": "", "text": "decision is guided by the First Circuit’s opinion in Avery v. Secretary of Health & Human Services, 797 F.2d 19 (1st Cir.1986), in which the court established that “complaints of pain need not be precisely corroborated by objective findings, but they must be consistent with medical findings.” Dupuis v. Sec’y of Health & Human Servs., 869 F.2d 622, 628 (1st Cir.1989) (per curiam) (interpreting Avery, 797 F.2d at 21). Thus, even when claimants assert that they suffer from a degree of pain that exceeds their physical symptoms, Avery “provides leeway for the administrative law judge to award benefits.” Bazile, 113 F.Supp.2d at 185. Avery requires the administrative law judge to consider six factors in evaluating a claimant’s subjective allegations of pain: (1) The nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) Precipitating and aggravating factors (e.g, movement, activity, environmental conditions); (3) Type, dosage, effectiveness, and adverse side-effects of any pain medication; (4) Treatment, other than medication, for relief of pain; (5) Functional restrictions; and (6) The claimant’s daily activities. Avery, 797 F.2d at 29. A finding that a claimant is not credible “must be supported by substantial evidence,” Da Rosa v. Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir.1986) (per curiam), and “must be bolstered by specific findings as to the relevant evidence considered in determining to disbelieve the claimant,” Pilet v. Apfel, 20 F.Supp.2d 240, 246 (D.Mass.1998). In the instant case, the administrative law judge made reference to the criteria set forth in Avery, Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192 (1st Cir.1987) (per curiam), and Social Security Ruling 88-13, and concluded that Musto’s “complaints of pain are substantially out of proportion to the physiological and anatomical findings of the examining physicians” and that “his complaints of severe, unremitting pain are not credible.” R. at 21. When supported by specific findings, the opinion of an administrative law judge is entitled to great deference. Guyton, 20 F.Supp.2d at 165. In this case, the administrative law judge described his specific findings as follows: Musto does not require any great" }, { "docid": "6451288", "title": "", "text": "Services, 654 F.2d 127, 128 (1st Cir.1981). Thus, this Court must affirm the Commissioner’s final decision “even if the record could justify a different conclusion, so long as the decision is supported by substantial evidence.” Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 144 (1st Cir.1987), quoting Pagan v. Secretary of Health and Human Services, 819 F.2d 1, 3 (1st Cir.1987). It is the responsibility of the administrative law judge to draw inferences from the record and make credibility determinations. Irlanda Ortiz v. Secretary of Health and Human Services, 955 F.2d 765, 769 (1st Cir.1991). A reviewing court must treat an agency’s factual conclusion with even more deference than an appellate court would show a factual conclusion reached by the district court, for the agency has had not only the opportunity to view the witnesses and determine their credibility, but it also has special expertise, experience and knowledge of the subject matter that guide its determination of the facts. Becker v. Secretary of Health and Human Services, 895 F.2d 34, 36 (1st Cir. 1990). When considering a claimant’s subjective assertions of pain, the administrative law judge must consider: (1) the nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) Precipitating and aggravating factors (e.g. movement, activity, environmental conditions); (3) Type, dosage effectiveness, and adverse side effects of any pain medication; (4) Treatment, other than medication, for relief of pain; (5) Functional restrictions; and (6) the claimant’s daily activities. Avery v. Secretary of Health and Human Services, 797 F.2d 19, 29 (1st Cir.1986). Ms. Castro claims that the ALJ erred in discounting her subjective complaints of pain in that the ALJ did not apply the proper legal standard and failed to consider required factors under Avery. Specifically, Ms. Castro asserts that the ALJ’s finding that she is not credible is not supported by substantial evidence because: (1) the ALJ failed to develop the record or make any findings concerning the extent to which her medications had an effect on her condition (the Third Avery factor); and (2) the ALJ erred in her analysis and determination" }, { "docid": "11338164", "title": "", "text": "perform work, including any limitations on that ability resulting from pain. See Avery, 797 F.2d at 28. Examining the claimant’s daily activities helps to shed light on the veracity of the claimant’s claims of pain and illuminate an RFC determination. See id at 28-29. But where the ALJ makes a cursory examination of the claimant’s daily activities and concludes that they are inconsistent with her claims of pain, without any specific explanation or reference to supporting evidence in the record, a reviewing court is left in the dark and the RFC is cast in a pallor of doubt. Because the ALJ in this case failed to even question Rohrberg about five of the Avery factors and failed to determine adequately the extent of the sixth—her daily activities—this Court concludes that the ALJ did not sufficiently consider Rohrberg’s subjective claims of pain. See id As a result, the Court concludes that the ALJ’s determination of Rohrberg’s RFC was analytically flawed and not supported by substantial evidence. Where, as here, there is no substantial evidence to support the ALJ’s decision because she “failed to conduct a proper inquiry into [claimant’s] subjective allegations of pain,” that decision must be reversed. Corchado v. Shalala, 953 F.Supp. 12, 15 (D.Mass.1996) (reversing and remanding for findings). While this error alone would suffice for a remand, see id, the Court will also consider the ALJ’s credibility determination and the medical evidence. b. Credibility Determination An ALJ resolves conflicts in the record and makes credibility determinations, but she cannot base such findings on groundless assertions; they must have the support of substantial evidence. See Frustaglia v. Secretary of Health and Human Servs., 829 F.2d 192, 195 (1st Cir.1987). Credibility determinations “must be supported by substantial evidence and the ALJ must make specific findings as to the relevant evidence [s]he considered in determining to disbelieve the [claimant].” DaRosa v. Secretary of Health and Human Servs., 803 F.2d 24, 26 (1st Cir.1986); see, e.g., Pilet v. Apfel, 20 F.Supp.2d 240, 246-47, No. 97-10478, 1998 WL 678131, at *6 (D.Mass.1998); Wauzinski v. Shalala, No. 91-11905, 1994 WL 725176, at *10 (D.Mass." }, { "docid": "6451289", "title": "", "text": "Cir. 1990). When considering a claimant’s subjective assertions of pain, the administrative law judge must consider: (1) the nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) Precipitating and aggravating factors (e.g. movement, activity, environmental conditions); (3) Type, dosage effectiveness, and adverse side effects of any pain medication; (4) Treatment, other than medication, for relief of pain; (5) Functional restrictions; and (6) the claimant’s daily activities. Avery v. Secretary of Health and Human Services, 797 F.2d 19, 29 (1st Cir.1986). Ms. Castro claims that the ALJ erred in discounting her subjective complaints of pain in that the ALJ did not apply the proper legal standard and failed to consider required factors under Avery. Specifically, Ms. Castro asserts that the ALJ’s finding that she is not credible is not supported by substantial evidence because: (1) the ALJ failed to develop the record or make any findings concerning the extent to which her medications had an effect on her condition (the Third Avery factor); and (2) the ALJ erred in her analysis and determination that Ms. Castro’s daily activities undermined her disability claim (the Sixth Avery factor). As to Ms. Castro’s assertion that the ALJ did not properly inquire into or consider the types of medication taken by her, the effects of such medication on her condition or the side effects, if any, of such medication, Ms. Castro acknowledges that she never raised these issues at the hearing. See Plaintiffs Memorandum In Support of Her Motion for Judgment cm the Pleadings (Docket No. 10), at p. 15. While it is true that an administrative law judge has an obligation to adequately investigate a claimant’s disability claim, the claimant has the initial burden of making a reasonable threshold showing of the alleged disability and any related functional limitations. Santiago v. Secretary of Health and Human Services, 944 F.2d 1 (1st Cir.1991). That is, the administrative law judge only has an obligation to develop the record of an impairment of which s/he has been alerted. Plaintiff claims that the ALJ erred in not investigating the effectiveness or the side effects, if" }, { "docid": "12799015", "title": "", "text": "judge was improper. Id. at 12, 16. Second, Musto contends that the finding of the administrative law judge that a wide range of sedentary jobs were available to him relied on a flawed assessment by the vocational expert and was not supported by substantial evidence. Id. at 12-13, 16-19. Third, Musto alleges that the administrative law judge failed adequately to develop the record of his depression and the side effects of his medications. Id. at 13, 19-20. 1. Musto’s Subjective Complaints of Pain The regulations establish that in cases such as Musto’s, in which a claimant has a medically-determinable severe physical impairment that is of less severity than the impairments described in Appendix 1 of subpart P of part 404 of the regulations, “the administrative law judge must consider the impact of related symptoms, including pain, on the claimant’s residual functional capacity.” Bazile, 113 F.Supp.2d at 185 (citing 20 C.F.R. § 404.1529[d][4]). Thus, the administrative law judge evaluates the claimant’s subjective complaints of pain and deter mines what probative weight to give to them. This decision is guided by the First Circuit’s opinion in Avery v. Secretary of Health & Human Services, 797 F.2d 19 (1st Cir.1986), in which the court established that “complaints of pain need not be precisely corroborated by objective findings, but they must be consistent with medical findings.” Dupuis v. Sec’y of Health & Human Servs., 869 F.2d 622, 628 (1st Cir.1989) (per curiam) (interpreting Avery, 797 F.2d at 21). Thus, even when claimants assert that they suffer from a degree of pain that exceeds their physical symptoms, Avery “provides leeway for the administrative law judge to award benefits.” Bazile, 113 F.Supp.2d at 185. Avery requires the administrative law judge to consider six factors in evaluating a claimant’s subjective allegations of pain: (1) The nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) Precipitating and aggravating factors (e.g, movement, activity, environmental conditions); (3) Type, dosage, effectiveness, and adverse side-effects of any pain medication; (4) Treatment, other than medication, for relief of pain; (5) Functional restrictions; and (6) The claimant’s daily activities. Avery, 797" }, { "docid": "22158974", "title": "", "text": "work — a finding that, given claimant’s age, education and work experience, compelled a conclusion of no disability based on exertional grounds alone. See Grid Rule 202.18. The record contains ample support for this finding. Ortiz argues that his back pain resulted in more severe strength limitations. It is true that the record is replete with his complaints, voiced repeatedly over the relevant period, as to the severity and unremitting nature of such pain. It is also true that there was here “a clinically determinable medical impairment” — his radiculopa-thy and subsequent herniated disc necessitating a laminectomy: — “that can reasonably be expected to produce the pain alleged.” Avery v. Secretary of Health and Human Services, 797 F.2d 19, 21 (1st Cir.1986). Yet the ALJ was justified in deeming his complaints not credible to the degree of severity alleged. The only direct measure of claimant’s strength limitations was contained in the RFC assessments of the Medical Consultant and Dr. Anduze. One was prepared before, and the other after, Ortiz’s disc operation; each indicated that his exertional capabilities were fully consistent with light work. In addition, Ortiz admitted on several occasions that he spent most days walking in the woods behind his house. He testified at the hearing that he had renewed his driver’s license in 1983 because he “didn’t feel too bad.” And, as mentioned above, he stated to Dr. Ulloa on March 4, 1986 that he was suffering only “mild” pain. Moreover, the ALT personally observed the claimant at the hearing and noted no “signs of distress or pain” and no “difficulty sitting, standing, or walking.” We pay “particular attention” to an ALJ’s evaluation of complaints of pain in light of their “subjective nature.” Sherwin v. Secretary of Health and Human Services, 685 F.2d 1, 3 (1st Cir.1982), cert. denied, 461 U.S. 958, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983); accord, e.g., Burgos Lopez v. Secretary of Health and Human Services, 747 F.2d 37, 40 (1st Cir.1984). We accordingly accept the ALJ’s determination that claimant's back pain did not preclude on exertional grounds the per-formanee of the full range" } ]

[ { "docid": "12732823", "title": "", "text": "by one of its registered representatives. It affirmed the judgment entered against the registered representative based upon her selling of unregistered securities in violation of § 12(1), but it reversed the district court’s grant of a judgment notwithstanding the verdict to the brokerage firm. The court found that the evidence presented sufficiently demonstrated that the registered representative had been acting within the course and scope of her employment to support the verdict rendered by the jury against the firm. Lewis v. Walston & Co., 487 F.2d at 621-24. While the court clearly utilized agency principles to impose liability upon the brokerage firm for the acts of its employee, it did not decide, nor apparently did the parties raise, the issue whether § 15 of the Securities Act, 77 U.S.C. § 77o, was the exclusive means by which secondary liability could be imposed upon the brokerage firm for the acts of its employee. We are unwilling to read Lewis as deciding by implication the question before'us on this appeal. C. Decisions by Other Circuits Other circuits that have clearly addressed the question have reached differing conclusions concerning the viability of the respondeat superior doctrine in an action brought under the federal securities acts. The Second, Fourth, Sixth, and Seventh Circuits have held that the controlling person provisions are not the exclusive methods by which secondary liability may be imposed under the securities acts, while the Third and Ninth Circuits have reached the oppo site conclusions. Compare Marbury Management, Inc. v. Kohn, 629 F.2d 705, Fed. Sec.L.Rep. (CCH) ¶ 97,357 (2d Cir. 1980); Holloway v. Howerdd, 536 F.2d 690 (6th Cir. 1976); Fey v. Walston & Co., 493 F.2d 1036 (7th Cir. 1974); Johns Hopkins University v. Hutton, 422 F.2d 1124 (4th Cir. 1970), cert. denied, 416 U.S. 916, 94 S.Ct. 1622, 40 L.Ed.2d 118 (1974); with Roehez Brothers v. Rhoades, 527 F.2d 880 (3d Cir. 1975); Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). See also Reyos v. United States, 431 F.2d 1337 (10th Cir. 1970), aff’d in" } ]

[ { "docid": "22879040", "title": "", "text": "told the customers about Wilkowski’s conviction.” Id. at 80:3. Instead, under the NASD's Rules of Fair Practice, to which all broker-dealers subscribe, \"[fjinal responsibility for proper supervision ... rest[s] with the member.” Id. at 80:2. We agree that the NASD’s decision to give Wilkowski an unconditional registration did not mean that the NASD approved of Titan’s decision not to disclose the conviction. Nonetheless, as we discuss in the text, the NASD’s decision to register Wilkowski without placing any supervision or other conditions on his registration tends to undermine appellants’ argument that Titan acted recklessly. . The SEC has defined “control” to mean: [T]he possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract, or otherwise. 17 C.F.R. § 230.405. . See, e.g., Zweig v. Hearst Corp., 521 F.2d 1129, 1134-35 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); accord Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111, 1120 (5th Cir.1980); Marbury Management, Inc. v. Kohn, 629 F.2d 705, 716 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). . Section 15(b)(4) provides: The Commission, by order, shall censure, place limitations on ..., suspend ... or revoke the registration of any broker or dealer if it finds ... that such broker or dealer ... (E) ... has failed reasonably to supervise, with a view to preventing violations ... [of the securities laws], another person who ... is subject to his supervision. 15 U.S.C. § 78o(b)(4). . Section 15(a) of the 1934 Act provides: (1) it shall be unlawful for any ... person not associated with a [registered] broker or dealer ... to make use of the mails or any means or instrumentality of interstate commerce to effect any transactions in ... any security. 15 U.S.C. § 78o(a). . Section 15(b) of the 1934 Act defines reasonable supervision as: established procedures, and a system for applying such procedures, which would reasonably be expected to prevent and detect, insofar" }, { "docid": "18575887", "title": "", "text": "chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. (Emphasis added.) The significance of this section here lies in the contrast between its proviso and the common law. The proviso requires a finding of liability unless the controlling person 1) “acted in good faith” and 2) did not “induce” the violation. By way of contrast, common law agency theories may impose liability upon a principal or an employer without these two preconditions. The case before us asks whether the Securities Act means that section 20(a) is an exclusive remedy. That is to say, does the existence of this section foreclose holding a principal (say, a corporation) or an employer (who ‘controls’ an agent or employee) ‘vicariously’ liable when the proviso’s two conditions are not met? The circuits seem to be split about the proper answer to this question. The Second, Fourth, Fifth, Sixth, Seventh and Tenth Circuits have held that section 20(a) does not constitute an exclusive substitute for vicarious liability that might otherwise exist. E.g., Marbury Management, Inc. v. Kohn, 629 F.2d 705, 712-16 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980); John Hopkins University v. Hutton, 422 F.2d 1124, 1130 (4th Cir.1970), cert. denied after later appeal, 416 U.S. 916, 94 S.Ct. 1622, 40 L.Ed.2d 118 (1974); Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111, 1118-19 (5th Cir.1980); Holloway v. Howerdd, 536 F.2d 690, 694-95 (6th Cir.1976); Fey v. Walston & Co., Inc., 493 F.2d 1036, 1051-52 (7th Cir.1974); Kerbs v. Fall River Industries, Inc., 502 F.2d 731, 740-41 (10th Cir.1974). The Ninth, and (with exceptions) the Third Circuits, have held the contrary. Zweig v. Hearst Corp., 521 F.2d 1129, 1132-33 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); Sharp" }, { "docid": "18719887", "title": "", "text": "controlling person had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist. . 15 U.S.C. §'78t(a) provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. . In granting summary judgment, the district court acknowledged that, \"[T]here is a factual dispute as to whether Anchor personnel knew that CTS personnel were selling Jerden, although CTS never informed Anchor that its employees were making such sales during the time period when those sales were actually being made.” Exerpt of Record at 183. Claimants argue that even if Anchor did not know of the sales, since Bethany, as principal, knew, this is attributable to Anchor under the doctrine of respondeat superior. While other circuits may apply respondeat superior in this context, see, e.g., Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111 (5th Cir.), reh. en banc denied, 634 F.2d 1355 (1980); Marbury Management, Inc. v. Kohn, 629 F.2d 705 (2d Cir.1980), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1981); Holloway v. Howerdd, 536 F.2d 690 (6th Cir.1976); Fey v. Walston & Co., 493 F.2d 1036 (7th Cir. 1974), we have held that the controlling persons statutes supplant common-law agency doctrines. Christoffel v. E.F. Hutton & Co., Inc., 588 F.2d 665, 667 (9th Cir. 1978); Zweig v. Hearst Corp., 521 F.2d 1129, 1132 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Given that the securities laws in general were meant to impose liability only on culpable parties with enforceable control, H.R.Rep. No. 1383, 73d Cong., 2d Sess. 26 (1934), we continue to adhere" }, { "docid": "18342698", "title": "", "text": "it is, or of law. If it is the former, we believe we properly instructed and formulated the interrogatory to the jury under Rochez, and that its answer to the interrogatory was amply supported by the evidence. It stands as a finding that Coopers & Lybrand was a controlling person of Higgins with regard to the drafting of the WMC opinion letter. The project of writing that letter was, after all, firm business which was done under the direction of partners and for which the defendant was compensated. If this is a question of law, we hold likewise that defendant was a controlling person under the SEC’s and this circuit’s liberal construction of “control.” See Gould, 535 F.2d at 779, and Rochez, 527 F.2d at 890, quoting and apparently adopting the SEC’s definition, 17 C.F.R. § 240.-12b-2(f) (“the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person . . . ”). We next asked the jury whether the defendant exercised reasonably adequate and sufficient supervision over Higgins, on the premises that a showing of such supervision by defendant would make out the good faith aspect of the two-part § 20 defense just as it would for broker-dealers and that this was the only basis on the record for a good faith defense. See Zweig v. Hearst Corp., 521 F.2d 1129, 1134-35 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); Barthe v. Rizzo, 384 F.Supp. 1063, 1069-70 (S.D.N.Y.1974); Gordon v. Burr, 366 F.Supp. 156, 168 (S.D.N.Y.1973), rev’d in part on other grounds, 506 F.2d 1080 (2d Cir. 1974); Lorenz v. Watson, 258 F.Supp. 724, 732-33 (E.D.Pa. 1966). The jury concluded defendant did not. Again we find this determination was supported by the evidence that, inter alia, David Wright (the partner who most directly was charged with supervising Higgins), never read the WMC limited partnership agreements or asked Higgins whether he had read them. Particularly in light of the fact that defendant bears the burden under Gould of making out this defense, we are" }, { "docid": "22879039", "title": "", "text": "court was to be petitioned to remove the guilty plea thus removing the record of this ever having occurred. At that time, I could actually state that I had not been convicted of any of the above. I was under the mistaken impression the matter was removed — which obviously is not the case. Record Excerpts (“R.E.”) at 321-22. . There is no evidence that at the time of Wilkowski’s defalcations, Titan knew that Wil-kowski had failed to make the restitution required by the plea agreement. . We do not agree with appellants that Barnes’ affidavit supports their contention that Titan had a duty to disclose Wilkowski’s forgery conviction to his clients. Barnes merely explained in his affidavit that the fact that the NASD had given Wilkowski an unconditional registration did not settle the question of whether Titan should have disclosed the conviction. C.R. 80:3. Barnes asserts that by registering Wilkowski, the NASD did not represent to Titan or to the public that Titan \"should have hired Wilkowski ... or [that] Titan [need not] have told the customers about Wilkowski’s conviction.” Id. at 80:3. Instead, under the NASD's Rules of Fair Practice, to which all broker-dealers subscribe, \"[fjinal responsibility for proper supervision ... rest[s] with the member.” Id. at 80:2. We agree that the NASD’s decision to give Wilkowski an unconditional registration did not mean that the NASD approved of Titan’s decision not to disclose the conviction. Nonetheless, as we discuss in the text, the NASD’s decision to register Wilkowski without placing any supervision or other conditions on his registration tends to undermine appellants’ argument that Titan acted recklessly. . The SEC has defined “control” to mean: [T]he possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through ownership of voting securities, by contract, or otherwise. 17 C.F.R. § 230.405. . See, e.g., Zweig v. Hearst Corp., 521 F.2d 1129, 1134-35 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); accord Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d" }, { "docid": "22879042", "title": "", "text": "as practicable, any ... violation [of the Act] by [an associated person]. 15 U.S.C. § 78o(b)(4)(E)(i). . This argument was never advanced by Titan. Titan acknowledged a duty to supervise Wilkow-ski and argued that its supervision of him was adequate. . The contract between Titan and Wilkowski provided: 7. Contractor's Freedom from Company Controls. The Company has no right to control or direct the Contractor in the sales of securities, not only as to the result to be accomplished by the work but also as to the details and means by which the result is accomplished, excepting [oversight and instructions required to comply with securities laws].... [T]he Contractor is completely free from the will and control of the Company not only as to what shall be done, but how it shall be done. R.E. at 311-12. . See Buhler, 807 F.2d at 835-36; Kersh v. General Council of Assemblies of God, 804 F.2d 546, 549-50 (9th Cir.1986); see also Christoffel, 588 F.2d at 669 (adopting \"participation” requirement, but not \"culpable participation” requirement). . Today’s holding, however, is reached in the context of the broker-dealer/registered representative relationship exclusively. We do not address the question of whether in other contexts the first prong of the Buhler and Christoffel test for determining a \"controlling person,” namely that of power and influence, may be applied. A person may, of course, be a controlling person without being a broker-dealer. See, e.g., Zweig, 521 F.2d at 1132. . We join several other circuits in holding that the defendant bears the burden of proving his good faith. See, e.g., Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111, 1120 (5th Cir.1980); Marbury Management, Inc. v. Kohn, 629 F.2d 705, 716 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980); SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1170 (D.C.Cir.1978), cert. denied, 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979); Fey v. Walston & Co., Inc., 493 F.2d 1036, 1051-52 (7th Cir.1974); Mader v. Armel, 461 F.2d 1123, 1126 (6th Cir.), cert. denied, 409 U.S. 1023, 93 S.Ct." }, { "docid": "22879016", "title": "", "text": "unauthorized and unknown transactions and therefore could not have been a “culpable participant” in Wilkow-ski’s misdeeds. See id. at 34. In applying the language in Buhler, the District Court made the question of whether Titan controlled Wilkowski turn on the particular business arrangement of the parties. A The SEC, as amicus curiae, joins appellants in arguing that the district court erred in holding that Titan could not be held vicariously liable as a “controlling person” under § 20(a) for Wilkowski’s misdeeds. We agree. Today we hold that a broker-dealer is a controlling person under § 20(a) with respect to its registered representatives. First, the SEC notes that this circuit and other circuits have interpreted the securities laws to impose a duty on broker-dealers to supervise their registered representatives. In Zweig, we noted that Congress adopted § 20(a) in an attempt to protect the investing public from representatives who were inadequately supervised or controlled: Purchasers of securities frequently rely heavily for investment advice on the broker-representative handling the. purchaser’s portfolio. Such representatives traditionally are compensated by commissions in direct proportion to sales. The opportunity and temptation to take advantage of the client is ever present. To ensure the diligence of supervision and control, the broker-dealer is held vicariously liable if the representative injures the investor through violations of Section 10(b) or the rules thereunder promulgated. The very nature of the vast securities business, as it has developed in this country, militates for such a rule as public policy and would seem to suggest strict court enforcement. 521 F.2d at 1135. The SEC argues that the representative/broker-dealer relationship is necessarily one of controlled and controlling person because the broker-dealer is required to supervise its representatives. This requirement arises from § 15 of the 1934 Act, which the SEC has interpreted as authority to impose sanctions on broker-dealers who have failed to provide adequate supervision of their registered representatives. See, e.g., In re Reynolds & Co., 39 S.E.C. 902, 916-17 (1960); In re Bond & Goodwin, Inc., 15 S.E.C. 584, 601 (1944). Second, the SEC argues that as a practical matter the broker-dealer" }, { "docid": "22879019", "title": "", "text": "the district court’s reasoning implied that even if Titan had the power to deny Wilkowski access to the trading markets or was required by statute to supervise his securities transactions, Titan still should not be considered a controlling person under § 20(a) because Wilkowski was an independent contractor, not an agent. We find no support in the statutory scheme for such a restrictive definition of controlling person that would exclude independent contractors, and thus, we do not distinguish for purposes of § 20(a) between registered representatives who are employees or agents and those who might meet the definition of independent contractors. In sum, § 20(a) of the Act provides that a person cannot lawfully engage in the securities business unless he is either registered as or associated with a broker-dealer, and we see no basis in the statutory scheme to distinguish between those associated persons who are employees and agents on the one hand, and those who are independent contractors on the other. To exclude from the definition of controlling person those registered representatives who might technically be called independent contractors would be an unduly restrictive reading of the statute and would tend to frustrate Congress’ goal of protecting investors. Thus, we reject the argument that broker-dealers can avoid a duty to supervise simply by entering into a contract that purports to make the representative, who is not himself registered under the Act as a broker-dealer, an “independent contractor.” To summarize, we hold that a broker-dealer is a controlling person under § 20(a) with respect to its registered representatives. This result is consistent with Zweig, where we said that “[t]o ensure the diligence of supervision and control, the broker-dealer is held vicariously liable if the representative injures the investor through violations of Section 10(b) or the rules thereunder promulgated.” 521 F.2d at 1135. Thus, for appellants to establish that Titan was a controlling person, they need only show that Wilkowski was not himself a registered broker-dealer but was a representative employed by or associated with a registered broker-dealer. This they have done. The facts are not in dispute that Wilkowski" }, { "docid": "22879041", "title": "", "text": "1111, 1120 (5th Cir.1980); Marbury Management, Inc. v. Kohn, 629 F.2d 705, 716 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980). . Section 15(b)(4) provides: The Commission, by order, shall censure, place limitations on ..., suspend ... or revoke the registration of any broker or dealer if it finds ... that such broker or dealer ... (E) ... has failed reasonably to supervise, with a view to preventing violations ... [of the securities laws], another person who ... is subject to his supervision. 15 U.S.C. § 78o(b)(4). . Section 15(a) of the 1934 Act provides: (1) it shall be unlawful for any ... person not associated with a [registered] broker or dealer ... to make use of the mails or any means or instrumentality of interstate commerce to effect any transactions in ... any security. 15 U.S.C. § 78o(a). . Section 15(b) of the 1934 Act defines reasonable supervision as: established procedures, and a system for applying such procedures, which would reasonably be expected to prevent and detect, insofar as practicable, any ... violation [of the Act] by [an associated person]. 15 U.S.C. § 78o(b)(4)(E)(i). . This argument was never advanced by Titan. Titan acknowledged a duty to supervise Wilkow-ski and argued that its supervision of him was adequate. . The contract between Titan and Wilkowski provided: 7. Contractor's Freedom from Company Controls. The Company has no right to control or direct the Contractor in the sales of securities, not only as to the result to be accomplished by the work but also as to the details and means by which the result is accomplished, excepting [oversight and instructions required to comply with securities laws].... [T]he Contractor is completely free from the will and control of the Company not only as to what shall be done, but how it shall be done. R.E. at 311-12. . See Buhler, 807 F.2d at 835-36; Kersh v. General Council of Assemblies of God, 804 F.2d 546, 549-50 (9th Cir.1986); see also Christoffel, 588 F.2d at 669 (adopting \"participation” requirement, but not \"culpable participation” requirement). . Today’s holding," }, { "docid": "3954164", "title": "", "text": "defendant \"controlled” the guardian because it could have refused to hire him, and because it could have influenced him by using its authority as his employer to discourage him from making improvident investments. Without discussing the plaintiffs contention, we affirmed judgment in favor of the brokerage house because of the absence of evidence indicating that the brokerage house \"culpably participated” in the illegal transactions, a second prong in the definition of “controlling person.” Cf. Zweig v. Hearst Corp., 521 F.2d 1129,1132 (9th Cir.) (holding that newspaper was a “controlling person” and thus potentially liable under section 20(a) for the acts of one of its employees), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). . This standard appears to be derived from the Securities & Exchange Commission (\"SEC”) definition of \"control”: \"the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.” 17 C.F.R. § 230.405 (1985). The SEC test has also been applied to determine whether to impose liability on persons who \"control” those using the mails to sell unregistered securities. See Safeway Portland Employees’ Federal Credit Union v. C.H. Wagner & Co., 501 F.2d 1120, 1124 & n. 17 (9th Cir.1974); see also Hokama v. E.F. Hutton & Co., 566 F.Supp. 636, 646 (C.D. Cal. 1983) (applying the Safeway Portland definition of \"control\" to the determination of liability under section 20(a)). . Kersh cites Sharp v. Coopers & Lybrand, 649 F.2d 175 (3d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982), as another example of a court imposing a duty to supervise on a non-broker (an accountant). However, Sharp held that an accounting firm was liable for breach of a duty to supervise under a respondeat superior theory, not section 20(a). We have clearly taken the position that section 20(a) supplants secondary liability based upon common law agency principles, such as respondeat superior. See Christoffel, 588 F.2d at 667. . The Fifth Circuit has essentially adopted this position." }, { "docid": "18719888", "title": "", "text": "know of the sales, since Bethany, as principal, knew, this is attributable to Anchor under the doctrine of respondeat superior. While other circuits may apply respondeat superior in this context, see, e.g., Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111 (5th Cir.), reh. en banc denied, 634 F.2d 1355 (1980); Marbury Management, Inc. v. Kohn, 629 F.2d 705 (2d Cir.1980), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1981); Holloway v. Howerdd, 536 F.2d 690 (6th Cir.1976); Fey v. Walston & Co., 493 F.2d 1036 (7th Cir. 1974), we have held that the controlling persons statutes supplant common-law agency doctrines. Christoffel v. E.F. Hutton & Co., Inc., 588 F.2d 665, 667 (9th Cir. 1978); Zweig v. Hearst Corp., 521 F.2d 1129, 1132 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Given that the securities laws in general were meant to impose liability only on culpable parties with enforceable control, H.R.Rep. No. 1383, 73d Cong., 2d Sess. 26 (1934), we continue to adhere to our prior holdings that the common law is supplanted by sections 15 and 20. . Claimants also argue that since Bethany was a principal in the CTS office and supervised the sales of the tax shelters, Anchor had influence over the salespeople in the CTS office. In short, claimants argue Bethany was Anchor. However, Bethany’s status as principal is not disposi-tive. Bethany was not an Anchor employee. Nor did Anchor dictate to Bethany any command with respect to the Audio and Jerden shelters. Anchor had no means of influence, direct or indirect, over any off-book sales. . Because the failure to supervise is not participation, it is unnecessary to decide whether the conduct was culpable, which we view as being a separate element of the participation requirement. See Kersh, 804 F.2d at 553, n. 6. . Anchor suggests that even if it is found to be a controlling person', it acted without knowledge and in good faith and therefore escapes liability under the exculpatory clauses of the statutes. Since we find Anchor is not" }, { "docid": "796252", "title": "", "text": "market to register with the Commission. Section 15(b) of the Act provides that the Commission shall deny registration to a broker or dealer if the Commission finds that such denial is in the public interest and that the broker-dealer has willfully violated any provision of the Securities Act of 1933, 15 U.S.C.A. § 77a et seq. or of the Exchange Act of 1934, 15 U.S.C.A. § 78a et seq., or of any rule under them, or has willfully made or caused to be made a false or misleading statement in any application for registration or supplemental document. Section 15A of the Exchange Act creates a medium for self-regulation of over-the-counter brokers and dealers. This section provides that national securities associations may be formed to supervise the conduct of their members under Commission registration. The only association registered under Section 15A is the National Association of Securities Dealers, Inc. (NASD). It is important here because NASD rules preclude a member from dealing with a non-member. Membership in NASD is therefore necessary for the profitable participation in under-writings and over-the-counter trading, since members may properly grant concessions, discounts, and other allowances only to other members. Under Section 15A(b) (4) of the Exchange Act, in the absence of the Commission’s approval or direction, no broker or dealer may be admitted to or continued in membership in a registered securities association (the NASD), if the broker or dealer (or any partner, officer, director or controlling or controlled person of the broker or dealer) was a cause of an order of denial of registration. The Securities Act of 1933 was. an outgrowth of the Pécora investigation of abuses in the investment field. The Act is designed to protect investors, against fraud and misrepresentation By and large, the statute deals with the initial distribution of securities rather than with subsequent trading. Securities offered to the public through the mails or interstate commerce channels must be registered with the SEC by the issuer, and the registration statement must contain certain information, the disclosure of which is intended to protect the public against fraud. The function of the" }, { "docid": "22879010", "title": "", "text": "aware that the NASD had not imposed any restriction or conditions on Wilkowski’s license to sell securities, although it was within its power to do so. Titan further knew that an eleven-year old forgery conviction was not considered disqualifying by either Congress or the NASD for purposes of determining whether a person should be licensed to work as a salesperson in the securities industry. As part of the 1934 Act, Congress provided that any person who met all of the requirements imposed by the NASD and who was not statutorily disqualified could be registered without restrictions as a representative of a broker-dealer to sell securities. See 15 U.S.C. § 78o (b)(1). Congress expressly provided that a forgery conviction was a statutory disqualification only if it occurred within ten years preceding the application registration. 15 U.S.C. § 78o (b)(4)(B)(iii). Under its rules, the NASD will give an unconditional registration to an applicant who is not statutorily disqualified and who “passes the applicable qualification examination, provides all necessary information and pays all required fees.” Aff’t of Andrew McR. Barnes, Associate General Council of the NASD, Clerk’s Record (“C.R.”) 80:1. The NASD may either refuse to register a person who is subject to statutory disqualification or impose special conditions on the registration. Id. at 80:3. Such conditional registrations typically require the sponsoring broker-dealer to engage in increased supervision of the registered representative’s work. Id. at 80:3. Wilkowski, who was not subject to a statutory disqualification, was granted an unconditional registration. Although the NASD’s unconditional registration did not mean that it had certified Wil-kowski to be a trustworthy securities salesman, the fact that Wilkowski was registered unconditionally and that the registration was neither revoked nor conditioned after the forgery conviction surfaced is relevant to the question of whether Titan acted recklessly when it omitted to inform appellants of the conviction. On the record, we hold that appellants have failed to make “a showing sufficient to establish the existence of an element essential to [their] case, and on which [they] will bear the burden of proof at trial.” See Celotex Corp. v. Catrett, 477 U.S." }, { "docid": "22879011", "title": "", "text": "McR. Barnes, Associate General Council of the NASD, Clerk’s Record (“C.R.”) 80:1. The NASD may either refuse to register a person who is subject to statutory disqualification or impose special conditions on the registration. Id. at 80:3. Such conditional registrations typically require the sponsoring broker-dealer to engage in increased supervision of the registered representative’s work. Id. at 80:3. Wilkowski, who was not subject to a statutory disqualification, was granted an unconditional registration. Although the NASD’s unconditional registration did not mean that it had certified Wil-kowski to be a trustworthy securities salesman, the fact that Wilkowski was registered unconditionally and that the registration was neither revoked nor conditioned after the forgery conviction surfaced is relevant to the question of whether Titan acted recklessly when it omitted to inform appellants of the conviction. On the record, we hold that appellants have failed to make “a showing sufficient to establish the existence of an element essential to [their] case, and on which [they] will bear the burden of proof at trial.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). When we view Wil-kowski’s conviction in light of Congress’ decision not to make an eleven-year old forgery conviction a statutory disqualification and the NASD’s decision not to revoke or condition Wilkowski’s registration, we conclude that the evidence would be insufficient to support a finding of fact that the conviction created a highly unreasonable risk that should have been obvious to Titan. A broker-dealer is not required to inform investors of every negative fact it knows about its registered representatives. It is a matter of judgment whether the negative facts create such a highly unreasonable risk of untrustworthiness that it would constitute recklessness. Here, we conclude that Titan’s failure to disclose Wilkowski’s eleven-year old conviction did not create such an unreasonable risk to investors that Titan’s failure to disclose the conviction was an extreme departure from the standard of ordinary care. In the final analysis, Titan may have made an error in judgment in failing to disclose Wilkowski’s conviction to his clients. Indeed, it is arguable" }, { "docid": "22879009", "title": "", "text": "of a scienter requirement. In applying the Sunstrand test to the facts of this case, the essential inquiry becomes: Was Titan's failure to disclose Wilkowski’s eleven-year old forgery conviction highly unreasonable and did it constitute an extreme departure from standards of ordinary care? B We start our inquiry by considering what Titan did know. In February, 1984, less than a month after the NASD had registered Wilkowski as a securities salesman, Titan learned from the NASD that Wilkowski had failed to disclose a prior conviction on his application. When Titan received Wilkowski’s rap sheet, it learned that eleven years earlier Wilkowski had received a suspended five-year sentence for felony forgery. When Titan asked Wilkow-ski to explain, Wilkowski gave what appeared on its face to be a plausible explanation: that he believed that his record had been expunged after five years under the terms of his plea agreement. Titan also knew the NASD, after reviewing all the information that Titan had on Wilkowski, decided not to revoke his registration as a registered representative. Titan was also aware that the NASD had not imposed any restriction or conditions on Wilkowski’s license to sell securities, although it was within its power to do so. Titan further knew that an eleven-year old forgery conviction was not considered disqualifying by either Congress or the NASD for purposes of determining whether a person should be licensed to work as a salesperson in the securities industry. As part of the 1934 Act, Congress provided that any person who met all of the requirements imposed by the NASD and who was not statutorily disqualified could be registered without restrictions as a representative of a broker-dealer to sell securities. See 15 U.S.C. § 78o (b)(1). Congress expressly provided that a forgery conviction was a statutory disqualification only if it occurred within ten years preceding the application registration. 15 U.S.C. § 78o (b)(4)(B)(iii). Under its rules, the NASD will give an unconditional registration to an applicant who is not statutorily disqualified and who “passes the applicable qualification examination, provides all necessary information and pays all required fees.” Aff’t of Andrew" }, { "docid": "22879043", "title": "", "text": "however, is reached in the context of the broker-dealer/registered representative relationship exclusively. We do not address the question of whether in other contexts the first prong of the Buhler and Christoffel test for determining a \"controlling person,” namely that of power and influence, may be applied. A person may, of course, be a controlling person without being a broker-dealer. See, e.g., Zweig, 521 F.2d at 1132. . We join several other circuits in holding that the defendant bears the burden of proving his good faith. See, e.g., Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111, 1120 (5th Cir.1980); Marbury Management, Inc. v. Kohn, 629 F.2d 705, 716 (2d Cir.), cert. denied, 449 U.S. 1011, 101 S.Ct. 566, 66 L.Ed.2d 469 (1980); SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1170 (D.C.Cir.1978), cert. denied, 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979); Fey v. Walston & Co., Inc., 493 F.2d 1036, 1051-52 (7th Cir.1974); Mader v. Armel, 461 F.2d 1123, 1126 (6th Cir.), cert. denied, 409 U.S. 1023, 93 S.Ct. 465, 34 L.Ed.2d 315 (1972). . The broker-dealer may also, of course, rely on a contention that the representative was acting outside of the broker-dealer’s statutory \"control.” For example, Titan could argue that when appellants entrusted their money to Wil-kowski they were not reasonably relying upon him as a registered representative of Titan, but were placing the money with Wilkowski for purposes other than investment in markets to which Wilkowski had access only by reason of his relationship with broker-dealer Titan. . See, e.g., In re Atlantic Fin. Management, Inc., 784 F.2d 29, 32-34 (1st Cir.1986), cert. denied, 481 U.S. 1072, 107 S.Ct. 2469, 95 L.Ed.2d 877 (1987); Commerford v. Olson, 794 F.2d 1319, 1322-23 (8th Cir.1986); Marbury Management, 629 F.2d at 712-16 (2d Cir.); Paul F. Newton & Co., 630 F.2d at 1115-19 (5th Cir.); Holloway v. Howerdd, 536 F.2d 690, 694-95 (6th Cir.1976); Kerbs v. Fall River Indus., Inc., 502 F.2d 731, 740-41 (10th Cir.1974). The Third Circuit has held that respondeat superior \"should not be widely expanded in the area of federal" }, { "docid": "3954153", "title": "", "text": "F.Supp. 417, 438-39 (N.D.Cal.1968), modified on other grounds, 430 F.2d 1202 (9th Cir.1970). Thus, under certain circumstances inaction in the form of a failure to supervise can nevertheless result in secondary liability. This “rule” or “exception” which allows inaction to be characterized as “indirect participation” has been described by the parties as the “broker dealer rule” or “exception” because it has for the most part been applied in the broker-dealer context. A. Should the Rule Be Applied to Non-Brokers? The defendants argue that secondary liability for breach of a duty to supervise is applicable only in the broker-dealer context. They correctly point out that this circuit has applied the rule only in Hecht, a broker-dealer case. However, in at least one instance, a circuit court has found a non-broker secondarily liable for failure to supervise. See G. A. Thompson & Co. v. Partridge, 636 F.2d 945, 959 (5th Cir.1981) (corporate director). More importantly, we have at least contemplated applying the rule in a non-broker context. See Zweig v. Hearst Corp., 521 F.2d 1129,1134-36 (9th Cir.) (newspaper publisher), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Thus, application of the rule cannot arbitrarily be limited to the broker-dealer context. Nevertheless, in Zweig, we viewed the broker-dealer context as a special case, where facts and policy merged to create a requirement that broker-dealers maintain and enforce a reasonable and proper system of supervision and internal control over controlled persons. In determining whether to impose a similar requirement on controlling persons other than broker-dealers, we considered several factors: a) whether the controlling person derives direct financial gain from the activity of the controlled person, b) the extent to which the controlled person is tempted to act unlawfully because of the controlling person’s policies (e.g., compensation system), c) the extent to which statutory or regulatory law or the defendant’s own policies require supervision, d) the relationship between the plaintiff and the controlling person, and e) the demonstration of some public policy need to impose such a requirement. See Zweig, 521 F.2d at 1135. Kersh attempts to characterize the defendants as" }, { "docid": "22879020", "title": "", "text": "might technically be called independent contractors would be an unduly restrictive reading of the statute and would tend to frustrate Congress’ goal of protecting investors. Thus, we reject the argument that broker-dealers can avoid a duty to supervise simply by entering into a contract that purports to make the representative, who is not himself registered under the Act as a broker-dealer, an “independent contractor.” To summarize, we hold that a broker-dealer is a controlling person under § 20(a) with respect to its registered representatives. This result is consistent with Zweig, where we said that “[t]o ensure the diligence of supervision and control, the broker-dealer is held vicariously liable if the representative injures the investor through violations of Section 10(b) or the rules thereunder promulgated.” 521 F.2d at 1135. Thus, for appellants to establish that Titan was a controlling person, they need only show that Wilkowski was not himself a registered broker-dealer but was a representative employed by or associated with a registered broker-dealer. This they have done. The facts are not in dispute that Wilkowski was a registered representative associated with Titan. Accordingly, Titan was, as a matter of law, a “controlling person” under § 20(a) with respect to Wilkowski. B Titan also argues that it was not a controlling person because it was not a “culpable participant” in Wilkowski’s deeds as required by Buhler, 807 F.2d at 835-36, and Christoffel v. E.F. Hutton & Co., 588 F.2d 665, 668-69 (9th Cir.1978). The district court, citing earlier cases from our circuit, agreed with Titan and ruled that a broker-dealer is not a “controlling person” under § 20(a) unless the plaintiff proves that the broker-dealer was a “culpable participant” in the violation. Today, however, we hold that a plaintiff is not required to show “culpable participation” to establish that a broker-dealer was a controlling person under § 20(a). The statute does not place such a burden on the plaintiff. Section 20(a) provides that a “controlling person” is liable “unless [he] acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of" }, { "docid": "13634159", "title": "", "text": "the purchase and sale of securities.” (Rule 10b-5). Indeed, a broker such as the defendant Stott conducts himself and carries out his daily routine through the instrumentalities of the national security exchanges and the over-the-counter market. (Rule 10b-5; Rule 15cl-2). For these and related reasons, courts have concluded that the broker, by virtue of his position, owes a fiduciary duty to his customer. Moscarelli v. Stamm, 288 F.Supp. 453 (E.D.N.Y.1968); Lorenz v. Watson, 258 F.Supp. 724 (E.D.Pa.1966). See Carras v. Burns, 516 F.2d 251, 258 (4th Cir. 1975); Hanly v. SEC, 415 F.2d 589, 597 (2d Cir. 1969). Since brokers are traditionally compensated by commissions in direct proportion to purchases and sales, the opportunity to take advantage of the client is always present. To ensure that the broker fulfills his fiduciary duty, and to protect against frauds upon the customer, the broker and his employer are made subject to a series of obligations, the fraudulent breach of which may render them liable to the investor in damages. See Zweig v. Hearst Corp., 521 F.2d 1129, 1135 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); Jacobs, The Impact of Securities Exchange Rule 10b-5 on Broker Dealers, 57 Cornell L.Rev. 869 (1972). Among the possible liabilities involved in the instant action are damages for alleged violations of Rule 10b-5 and Rule 15cl-2, and of the rules of the New York Stock Exchange and of the National Association of Securities Dealers. Rule 405 of the New York Stock Exchange provides in part as follows: “Every member organization is required through a general partner, a principal executive officer or a person or persons designated under the provisions of Rule 342(b)(1) to “(1) Use due diligence to learn the essential facts relative to every customer, every order, every cash or margin account accepted or carried by such organization and every person holding power of attorney over any account accepted or carried by such organization. [and to] “(2) Supervise diligently all accounts handled by registered representatives of the organization.” Article III, Section 2 of the Rules of Fair Practice of" }, { "docid": "3954163", "title": "", "text": "filed for this appeal, we issued an order to the parties requiring them to come prepared to oral argument to discuss whether we lacked jurisdiction to review only one of two consolidated cases absent a Rule 54(b) certification, citing Huene v. United States, 743 F.2d 703 (9th Cir. 1984). Subsequently, the appellant obtained a proper Rule 54(b) certification from the district court, which was filed with this court. The judgment having been certified as final and thus reviewable, we have jurisdiction in this appeal. See Freeman v. Hittle, 747 F.2d 1299, 1302 (9th Cir.1984) (absent prejudice to the parties, a proper Rule 54(b) certification obtained after notice of appeal was filed is sufficient to confer appellate jurisdiction). . While Christoffel states the rule that a \"controlling person” must have \"power\" or \"influence” over the controlled person, it does not define \"power” or \"influence.\" While in Christoffel the defendant brokerage house had no legal authority to compel a guardian (the company’s employee) to make particular investments on behalf of a trust, the plaintiff argued that the defendant \"controlled” the guardian because it could have refused to hire him, and because it could have influenced him by using its authority as his employer to discourage him from making improvident investments. Without discussing the plaintiffs contention, we affirmed judgment in favor of the brokerage house because of the absence of evidence indicating that the brokerage house \"culpably participated” in the illegal transactions, a second prong in the definition of “controlling person.” Cf. Zweig v. Hearst Corp., 521 F.2d 1129,1132 (9th Cir.) (holding that newspaper was a “controlling person” and thus potentially liable under section 20(a) for the acts of one of its employees), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). . This standard appears to be derived from the Securities & Exchange Commission (\"SEC”) definition of \"control”: \"the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.” 17 C.F.R. § 230.405 (1985). The SEC test" } ]

[ { "docid": "21554809", "title": "", "text": "the following general definitions: “—An open market is one in which anyone, or at least a large number of persons, can buy or sell. —A developed market is one which has a relatively high level of activity and frequency, and for which trading information (e.g., price and volume) is widely available. It is principally a secondary market in outstanding securities. It usually, but not necessarily, has continuity and liquidity (the ability to absorb a reasonable amount of trading with relatively small price changes). —An efficient market is one which rapidly reflects new information in price. These terms are cumulative in the sense that a developed market will almost always be an open one. And an efficient market will almost invariably be a developed one.” Cammer v. Bloom, 711 F.Supp. 1264, 1276 n. 17 (D.N.J.1989) (quoting 4 Bromberg & Lowenfels, Securities Fraud and Commodities Fraud § 8.6 (Aug.1988)). The court in Cammer identified five factors that would be useful in proving that a security was traded in an efficient market, justifying the application of the fraud on the market theory: (1) a large weekly trading volume; (2) the existence of a significant number of reports by securities analysts; (3) the existence of market makers and arbitrageurs in the security; (4) the eligibility of the company to file an S-3 Registration Statement; and (5) a history of immediate movement of the stock price caused by unexpected corporate events or financial releases. Cammer, supra, 711 F.Supp. at 1286-87. Considering these criteria, it appears that securities traded in national secondary markets such as the New York Stock Exchange, as was the case in Levinson, are well suited for application of the fraud on the market theory. The high level of trading activity ensures that information from many sources is disseminated into the marketplace and consequently is reflected in the market price. This is the premise upon which the fraud on the market theory rests. By contrast, a primary market for newly issued municipal bonds “is not efficient or developed under any definition of these terms.” In re Bexar County Health Facility Dev. Corp. Sec." } ]

[ { "docid": "4084804", "title": "", "text": "purchasing or selling securities in an open and developed market, they need not establish that they relied on specific misrepresentations. Kirkpatrick, 827 F.2d at 722. As explained by the Supreme Court in Basic v. Levinson: The fraud on the market theory is based on the hypothesis that, 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____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements____ The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. 485 U.S. 224, 241-42, 108 S.Ct. 978, 988-89, 99 L.Ed.2d 194, 215 (1988) (quoting Peil v. Speiser, 806 F.2d 1154, 1160-1161 (3d Cir. 1986)). See also Lipton v. Documation, Inc., 734 F.2d 740, 747-48 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985). In order for the market theory to apply, however, it follows that a plaintiff must show that the market in which the stock traded was “efficient.” Freeman v. Laventhol & Horwath, 915 F.2d 193, 197-98 (6th Cir.1990); Greenberg v. Boettcher & Co., 755 F.Supp. 776, 781 (N.D.Ill.1991); Cammer v. Bloom, 711 F.Supp. 1264, 1285 & n. 34 (D.N.J.1989). An efficient market has been defined as one that obtains material information about a company and rapidly reflects that new information in the price of the stock. Hurley v. Federal Deposit Ins. Corp., 719 F.Supp. 27, 34 (D.Mass.1989). Courts have suggested that the following factors may indicate an efficiently traded security: (1) a large weekly trading volume, (2) a significant number of securities analysts followed and reported on the company’s stock during the applicable period, (3) the stock had numerous market makers and arbitrageurs, (4) the company was entitled to file an S-3 Registration Statement in connection with public offerings or, if ineligible, the ineligibility was the result of timing factors and not because the minimum stock requirements set forth in the" }, { "docid": "11774229", "title": "", "text": "the case than the rejected class representatives in Griffin. The Court concludes that he is an adequate class representative, and will allow him to serve as such. The Court will certify both Mr. Griffin and Mr. Trent as class representatives. B. The Two Elements of 23(b)(3) Once the four elements of Rule 23(a) have been satisfied, plaintiffs must satisfy the two prongs of Rule 23(b)(3). First, plaintiffs must show that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). Secondly, plaintiffs must show that “a class action is superior to other available methods for the fair an efficient adjudication of the controversy.” Id. 1. Predominance Generally, plaintiffs must establish that they relied on misrepresentations or omissions by the defendant. See Semerenko v. Cendant Corp., 223 F.3d 165, 178 (3d Cir.2000). However, in securities fraud cases, when a claim is predicated on a fraud on the market theory, there is a presumption that common issues of reliance predominate over any individual issues. See id.; Basic v. Levinson, 485 U.S. 224, 242, 108 S.Ct. 978, 989, 99 L.Ed.2d 194 (1988); Zlotnick v. TIE Communications, Inc., 123 F.R.D. 189, 194-95 (E.D.Pa.1988). In essence, The fraud on the market theory is based on the hypothesis that, 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.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements .... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Basic, 485 U.S. at 241-42, 108 S.Ct. at 989 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)) (ellipses in original). To take advantage of the presumption applicable in fraud on the market cases, plaintiffs must allege or present facts sufficient to raise the inference that Resource America, Inc.’s stock traded in an efficient market. See Wiley v." }, { "docid": "17497945", "title": "", "text": "L.Ed.2d 194 (1988), obviates the necessity that a plaintiff prove reliance and, instead, permits the rebuttable presumption that a plaintiff relied on the integrity of the market price in purchasing his or her shares of stock. The presumption is ¿ppropriate only if the company’s stock was traded in an “efficient market.” Commonly referred to as “the fraud-on-the-market theory,” this approach assumes that in an efficient market, all the available information about the company is quickly reflected in the price at which people are willing to buy and sell the stock. Freeman v. Laventhol & Horwath, 915 F.2d 193 (6th Cir.1990). Thus, the theory continues, “[i]nvestors rely on the price of the security as an accurate reflection of its worth. They, therefore, rely indirectly on such misrepresentations, even if they do not rely on them directly.” Id. at 197 (citations omitted). Consequently, “[t]he fraud on the market theory cannot be applied logically to securities that are not traded in efficient markets.” Id. at 198. Here, the determinative question now becomes whether IAS stock traded in an efficient market, thereby allowing Plaintiffs the benefit of the presumption. IAS stock is traded on the OTC Bulletin Board, a screen-based quotation system for small or inactively traded companies that is operated by, but is distinct from, the Nasdaq Stock Market. While some courts have held, without further inquiry, that the over-the-counter market is not an efficient market, the wiser approach appears to be a close examination of the evidence to determine whether IAS stock traded in an efficient market. See, Cammer v. Bloom, 711 F.Supp. 1264, 1281 (D.N.J.1989). Courts have cited various factors as probative of the efficiency of a particular market. These factors include: (1) whether there was a large weekly trading volume; (2) the existence of a significant number of reports by securities analysts; (3) the existence of market makers and arbitrageurs in the security; (4) the eligibility of the company to file an S-B Registration Statement; and (5) a history of immediate movement of the stock price. Freeman, 915 F.2d at 199 (citation omitted). a. Weekly Trading Volume. The significance of" }, { "docid": "9445384", "title": "", "text": "reliance on fraudulent statements is, however, only one theory of causation. Plaintiffs must show “ ‘some causual nexus’ between defendant’s conduct and [their] losses, ... [but] proof of causation need not be limited to an affirmative showing of reliance upon a written offering circular.” Dekro v. Stem Brothers & Co., 540 F.Supp. 406, 411 (W.D.Mo.1982) (citing St. Louis Union Tmst, 562 F.2d at 1048). Where the alleged fraud consists primarily of omissions, the reliance requirement may be “relaxed.” Vervaecke v. Chiles, Heider & Co., 578 F.2d 713 (8th Cir.1978). More pertinently, investors may allege that misrepresentations harmed them indirectly “by affecting the market upon which [they] relied and traded.” Harris v. Union Electric Co., 787 F.2d 355, 367 n. 9 (8th Cir.) (citations omitted), cert. denied, — U.S. -, 107 S.Ct. 94, 93 L.Ed.2d 45 (1986). The fraud on the market theory assumes that “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.” Peil v. Speiser, 806 F.2d 1154, 1160 (3d Cir.1986) (citing Note, The Fraud-on-the-Market-Theory, 95 Harv.L. Rev. 1143, 1154-56 (1982)). Purchasers who do not directly rely on misstatements, but do rely on the stock’s price as evidence of its value, may thereby be defrauded. Thus, causation is adequately established in the impersonal stock exchange context by proof of purchase and of the materiality of misrepresentations, without direct proof of reliance. Materiality circumstantially establishes the reliance of some market traders and hence the inflation in the stock price — when the purchase is made the causational chain between the defendant’s conduct and plaintiff’s loss is sufficiently established to make out a prima facie case. Blackie v. Barrack, 524 F.2d 891, 906 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976) quoted in Lipton v. Documation, Inc., 734 F.2d 740, 747 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985). See also Levinson v. Basic Inc., 786 F.2d 741 (6th Cir.1986) (suggesting elements of fraud on the market theory), cert. granted, — U.S." }, { "docid": "4084803", "title": "", "text": "been met, because individual questions of law and fact predominate over those questions common to the class. In support of their position, Defendants assert that individual issues of reliance peculiar to each class member and the broad definition of the class period and class composition render this class unmanageable and, thus, preclude a finding that Rule 23(b)(3) has been satisfied. Each of these arguments will be considered in turn. 1. Reliance Proof of reliance is an essential element of a Rule 10b-5 action as it “establishes the causal link between the defendant’s activities and the plaintiff’s injuries and prevents federal securities law from affording unlimited liability.” Ross v. Bank South, N.A., 885 F.2d 723, 728 (11th Cir.1989) (en banc), cert. denied, — U.S. -, 110 S.Ct. 1924, 109 L.Ed.2d 287 (1990). While recovery under the federal securities laws generally requires a showing of actual reliance on the alleged misrepresentation or omission, courts have recognized a presumption of reliance in certain circumstances. For example, where plaintiffs demonstrate that they relied upon the integrity of market in purchasing or selling securities in an open and developed market, they need not establish that they relied on specific misrepresentations. Kirkpatrick, 827 F.2d at 722. As explained by the Supreme Court in Basic v. Levinson: The fraud on the market theory is based on the hypothesis that, 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____ Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements____ The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. 485 U.S. 224, 241-42, 108 S.Ct. 978, 988-89, 99 L.Ed.2d 194, 215 (1988) (quoting Peil v. Speiser, 806 F.2d 1154, 1160-1161 (3d Cir. 1986)). See also Lipton v. Documation, Inc., 734 F.2d 740, 747-48 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985). In order for the market" }, { "docid": "8010070", "title": "", "text": "an element of a Rule 10b-5 cause of action, but Plaintiffs may be entitled to a rebuttable presumption of reliance based on the fraud-on-the-market theory. See Basic, Inc. v. Levinson, 485 U.S. 224, 247, 108 S.Ct. 978, 991, 99 L.Ed.2d 194 (1988). That theory was described by the Supreme Court as follows: “The fraud on the market theory is based on the hypothesis that, 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---- Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements____ The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations.” Basic, Inc. v. Levinson, 485 U.S. at 241-42, 108 S.Ct. at 988-89 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3rd Cir.1986)). To be entitled to the presumption, Plaintiffs must show that the materially misleading statements were disseminated into “an impersonal, well-developed market for securities.” Id. at 247, 108 S.Ct. at 991. The presumption is rebuttable: Defendants may show that the market price was not affected by their misrepresentations or that Plaintiffs did not trade in reliance on the integrity of the market price. Id. at 248-49, 108 S.Ct. at 992. Defendants’ contention that Mazerolle’s claims are atypical of those of the class fails because the Court may not consider the merits of the case at the class certification stage. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974); see also Randle v. Spectran, 129 F.R.D. 386, 391 (D.Mass.1988) (inappropriate to raise non-reliance at class certification). The Second Consolidated Amended Complaint alleges that Mazerolle and the other named Plaintiffs relied on the integrity of the market and that the markets for trading One Ban-corp common stock were open, well developed and efficient. It also alleges that Plaintiffs purchased One Bancorp stock at artificially inflated prices due to Defendants’ misrepresentations. For the purposes" }, { "docid": "1427091", "title": "", "text": "v. Finkle, 950 F.2d 165, 167 (4th Cir.1991).' If, as here, a plaintiff pursues the action based on _ a fraud on the market theory, the plaintiff is relieved of proving the element of direct reliance. See Basic, Inc. v. Levinson, 485 U.S. 224, 241-50, 108 S.Ct. 978, 988-93, 99 L.Ed.2d 194 (1988). As enunciated in Basic: The fraud on the market theory is based on the hypothesis that, 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.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements .... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Id. at 241-42, 108 S.Ct. at 989 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir. 1986)). Under this theory, a “plaintiff claims that he was induced to trade stock not by any particular representations made by corporate insiders, but by the artificial stock price set by the market.” In Re Apple Computer Secs. Litig., 886 F.2d 1109, 1114 (9th Cir.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3229, 110 L.Ed.2d 676 (1990). Thus, under the fraud on the market theory, Appellants “need not show that they themselves actually relied on any particular misrepresentation or omission.” In re Convergent Technologies Secs. Litig., 948 F.2d 507, 512 n. 2 (9th Cir.1991). Rather, “they need only show that they relied on the integrity of the price of the stock as established by the market, which in turn is influenced by information or the lack of it.” Id. This theory therefore “recognizes that most investors rely on. the market to evaluate information for them, rather than on their own independent analysis of a stock’s value.” Id. Accordingly, Appellants’ “reliance on the market ... is equivalent to reliance upon statements made to the market, or the nondisclosure of material information.” Id. A. We first address the contention that" }, { "docid": "2566030", "title": "", "text": "and (3). Moreover, even if Plaintiffs were relying solely on Rule 10b-5(2), it is alleged that the SAI securities were traded on a secondary, developed market, not on a primary one like in Shores. Under the Supreme Court’s analysis in Basic, the fraud on the market theory applies to actions asserting the presence of false or misleading statements in documents disseminated to the investing public. The opinion did not distinguish between the various liability provisions of Rule 10b-5. Thus, while it remains unclear whether the Shores court’s holding, refusing to apply the fraud on the market theory to 10b-5(2) cases in a primary market, remains intact after Basic, the presumption is certainly available in section (2) cases where an open market is involved. See also Lipton, 734 F.2d 740. Accordingly, the Court concludes that a presumption of reliance may be available to Plaintiffs in Feld and Adler. Defendants PMM and Bodden further argue that even if the fraud on the market theory is available in a Rule 10b-5(2) situation, it does not apply to these cases as Plaintiffs have not sufficiently alleged that the SAI stock was traded on an efficient market. An efficient market has been defined as one that obtains material information about a company and rapidly reflects that new information in the price of the stock. Hurley v. Federal Deposit Ins. Corp., 719 F.Supp. 27, 34 (D.Mass.1989). Defendants correctly point out that a plaintiff seeking to invoke the fraud on the market theory must allege either that the stock they purchased or sold was actively traded on a well-developed, efficient market or facts which give rise to such an inference. Greenberg v. Boettcher & Co., 755 F.Supp. 776, 781 (N.D.Ill. 1991); Cammer v. Bloom, 711 F.Supp. 1264, 1278 (D.N.J.1989); Hurley, 719 F.Supp. at 34. In the absence of an allegation of efficiency, however, courts are divided as to what extent a plaintiff must specifically plead facts of a well-developed market. In Hurley, for example, the district court, requiring a rather minimal showing, held that allegations that a bank issued approximately five million shares of stock which were" }, { "docid": "15863281", "title": "", "text": "I disagree. The “fraud on the market” doctrine, endorsed by the Supreme Court in Basic, see Basic, 485 U.S. at 241-42, 108 S.Ct. 978, recognizes that in an open, efficient, and developed market, where millions of shares are traded daily, investors must rely on the market to perform a valuation process which incorporates all publicly available information, including misinformation. See id. at 241-47, 108 S.Ct. 978. Consequently, the reliance of individual plaintiffs on the integrity of a price in such a market, and implicitly the misinformation that contributed to that price, may be presumed.„ See id. at 247, 108 S.Ct. 978. See also Grossman, 120 F.3d at 1118 (recognizing the “fraud on the market” doctrine). In order to take advantage of the doctrine, however, a plaintiff must plead, and ultimately prove, that the market on which the security is traded is efficient. See Wiles, 223 F.3d at 1163 n. 2 (recognizing that the “fraud on the market doctrine,” and its corresponding presumption of reliance, only apply to efficient markets). See also Freeman v. Laventhol & Horwath, 915 F.2d 193, 198 (6th Cir. 1990) (the efficient market requirement is a necessary underpinning of the fraud-on-the-market theory, because “[a]n inefficient market, by definition, does not incorporate into its price all available information about the value of a security.”). Courts assessing the efficiency of markets consider: (1) whether the stock trades at a high weekly volume; (2) whether securities analysts follow and report on the stock; (3) whether the stock has market makers and arbitrageurs; (4) whether the company is eligible to file SEC Form S-3; and (5) whether there are empirical facts showing a cause and effect relationship between unexpected corporate events or financial releases and an immediate response in the stock price. See, e.g., Stat-Tech Liquidating Trust v. Fenster, 981 F.Supp. 1325, 1345 (D.Colo.1997) (Stab-Tech); Cammer v. Bloom, 711 F.Supp. 1264, 1286-87 (D.N.J.1989). No bright-line rules exist as to how many factors must be plead before a plaintiff is entitled to the presumption of reliance. See Cammer, 711 F.Supp. at 1287 (“It is not logical to draw bright line tests ..." }, { "docid": "23460033", "title": "", "text": "knowledge of its falsity and his intention that plaintiff rely on it; (5) the plaintiffs reasonable reliance thereon; and (6) his resultant loss. See Peil v. Speiser, 806 F.2d 1154, 1160 (3d Cir.1986); 3 Loss, Securities Regulation 1431 (1961). While there is little dispute plaintiffs asserting § 10(b) claims must generally satisfy all of these requirements, only the reliance requirement is of concern here. It is settled a plaintiff asserting a claim under Rule 10b-5 can satisfy the reliance element by asserting, in appropriate cases, the fraud on the market theory rather than alleging direct reliance on a defendant’s misrepresentations. See Basic v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 989-91, 99 L.Ed.2d 194 (1988); Peil v. Speiser, 806 F.2d at 1160-1161; Blackie v. Barrack, 524 F.2d 891, 907 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). As the Supreme Court succinctly explained in Basic: “The fraud on the market theory is based on the hypothesis that, 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 .... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements_ The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations . ’ ’ 108 S.Ct. at 988-89 (citations omitted). A specific holding in the Third Circuit’s Peil decision was that “plaintiffs who purchase in an open and developed market need not prove direct reliance on defendants’ [material] misrepresentations” — only that defendants made such misrepresentations. 806 F.2d at 1161. Although Peil makes it clear “the fraud on the market theory rests on the assumption that there is a nearly perfect market of information,” id. at 1161 n. 10, the Third Circuit affirmatively declined to specifically define the term “open and developed market.” It stated that “[a]s the case at bar involves a widely traded and established stock, we need not consider" }, { "docid": "16697088", "title": "", "text": "accord Simon De Bartolo Grp., L.P. v. Richard E. Jacobs Grp., Inc., 186 F.3d 157, 173 (2d Cir.1999). . Hevesi v. Citigroup, Inc., 366 F.3d 70, 77 (2d Cir.2004). . Basic Inc. v. Levinson, 485 U.S. 224, 241-42, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)); see also id. at 247, 108 S.Ct. 978 (\"Because most publicly available information is reflected in market price, an investor’s reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action.”) . See 4 Alan R. Bromberg & Lewis D. Lowen-fels, Bromberg & Lowbnfels on Securities & Commodities Fraud § 7:469 (2d ed.2003) (noting that the Supreme Court’s decision in Basic made no distinction between the clauses of Rule 10b-5). . Id. § 7:484. . Id. But see Cromer Finance Ltd. v. Berger, 205 F.R.D. 113, 130 (S.D.N.Y.2001) (noting that the issue is not whether the market \"be 'opened’ and ‘developed’ per se, but that those features are typical of markets where share price 'reflects all publicly available information and, hence, any material misrepresentations.’ ”) (quoting Basic, 485 U.S. at 246, 108 S.Ct. 978). . In re Laser Arms Corp. Securities Litig., 794 F.Supp. 475, 490 (S.D.N.Y.1989), aff'd, 969 F.2d 15 (2d Cir.1992). Courts considering the issue have looked to several factors, including: “(1) a large weekly trading volume; (2) the existence of a significant number of analyst reports; (3) the existence of market makers and arbitrageurs in the security; (4) the eligibility of the company to file an S-3 registration statement; and (5) a history of immediate movement of the stock price caused by unexpected corporate events or financial releases.” In re Public Offering Securities Litig., 227 F.R.D. 65, 107 n. 323 (S.D.N.Y.2004) (citing Cammer v. Bloom, 711 F.Supp. 1264, 1276 (D.N.J.1989)); id. (citing cases). . Cpt. ¶¶ 57, 1064. . Id. ¶ 8. . Id. ¶ 59. . Id. An American Depository Receipt (\"ADR”) \"is a receipt that is issued by a depositary bank that represents a specified amount of a foreign security that has been deposited" }, { "docid": "1440139", "title": "", "text": "they are entitled to rely on the fraud-on-the-market theory in support of their claim of reliance on ' the alleged misrepresentations and omissions because they have adequately stated in their complaint that the over-the-counter market in which the stock was traded was in fact efficient. The United States Supreme Court has articulated the fraud-on-the-market theory in the following way: “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.... Misleading statements will therefore defraud purchasers of stock even if the purchasers did not directly rely on the misstatements.” Basic, Inc. v. Levinson, 485 U.S. 224, 241, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988). The Ninth Circuit has adopted the test set forth in Cammer v. Bloom, 711 F.Supp. 1264 (D.N.J.1989), in order to determine whether a fraud-on-the-market exists when stocks are traded in an over-the-counter market. See Binder v. Gillespie, 184 F.3d 1059, 1065 (9th Cir.1999), cert. denied, — U.S. —, 120 S.Ct. 1158, 145 L.Ed.2d 1070. (2000). In Cammer, the court identified the following factors as indicative of an efficient market: (1) the existence of an average weekly trading volume of one percent (substantial presumption of efficient market) or two percent (strong presumption of efficient market) of outstanding shares during the class period; (2) a significant number of securi ties analysts following the company’s stock during the class period; (3) the existence of numerous market makers; (4) the company’s eligibility to file an S-3 Registration Statement (or, if ineligible, such ineligibility resulted from timing factors rather than a failure to meet the minimum stock requirements); (5) “empirical facts showing a cause and effect relationship between unexpected corporate events or financial releases and an immediate response in the stock price.” Cammer, 711 F.Supp. at 1286-87. The court also noted that while each factor need not be alleged in order to give rise to the inference that the stock was traded in an efficient market, the fifth factor may be the most significant factor in determining market efficiency as it is “the essence of an" }, { "docid": "16207177", "title": "", "text": "e.g., id. at -, 108 S.Ct. at 990; Affiliated Ute Citizens v. United States, 406 U.S. 128, 153-54, 92 S.Ct. 1456, 1472, 31 L.Ed.2d 741 (1971). In Rule 10b-5 suits alleging misrepresentation, a plaintiff still must prove actual reliance. See Shores, 647 F.2d at 471; Dupuy v. Dupuy, 551 F.2d 1005, 1014 (5th Cir.), cert. denied, 434 U.S. 911, 98 S.Ct. 312, 54 L.Ed.2d 197 (1977). When a plaintiff has proven a breach of a duty to disclose material information, however, he is not required to prove actual reliance: a rebuttable presumption of reliance arises. See Affiliated Ute Citizens, 406 U.S. at 153-54, 92 S.Ct. at 1472. Many courts now presume reliance on the basis of the fraud-on-the-market theory. The Supreme Court in Basic explained that, 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.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements_ The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. 485 U.S. at -, 108 S.Ct. at 988-89 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)). Thus, most courts now recognize that, in an efficient securities market, competing judgments of knowledgeable buyers and sellers cause the market to reflect an accurate price based on all available information. See, e.g., Lipton v. Domination, Inc., 734 F.2d 740, 748 (11th Cir.1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 814, 83 L.Ed.2d 807 (1985). Consequently, an investor is entitled to rely on the market price of securities and may recover under Rule 10b-5 if fraud has affected that price. Blackie v. Barrack, 524 F.2d 891, 907 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). This brings me to Shores. The Shores court, citing Blackie and other fraud-on-the-market cases, applied the theory to a fraud that occurred in a primary market— one in which the" }, { "docid": "11774230", "title": "", "text": "id.; Basic v. Levinson, 485 U.S. 224, 242, 108 S.Ct. 978, 989, 99 L.Ed.2d 194 (1988); Zlotnick v. TIE Communications, Inc., 123 F.R.D. 189, 194-95 (E.D.Pa.1988). In essence, The fraud on the market theory is based on the hypothesis that, 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.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements .... The causal connection between the defendants’ fraud and the plaintiffs’ purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. Basic, 485 U.S. at 241-42, 108 S.Ct. at 989 (quoting Peil v. Speiser, 806 F.2d 1154, 1160-61 (3d Cir.1986)) (ellipses in original). To take advantage of the presumption applicable in fraud on the market cases, plaintiffs must allege or present facts sufficient to raise the inference that Resource America, Inc.’s stock traded in an efficient market. See Wiley v. Hughes Capital Corp., 746 F.Supp. 1264, 1289 (D.N.J.1990). When using the fraud on the market theory of reliance, the court presumes “ (1) that the market price of the security actually incorporated the alleged misrepresentations, (2) that the plaintiff actually relied on the market price of the security as an indicator of its value, and (3) that the plaintiff acted reasonably in relying on the market price of the security.” Semerenko, 223 F.3d at 178-79. Typically, courts look at a number of factors in determining whether or not a market is efficient. While there is no definitive list, the court in Cammer v. Bloom, 711 F.Supp. 1264 (D.N.J.1989), listed five factors which lead to the presumption that there is an efficient market. Those factors are as follows: 1) An actively traded market, as evidenced by a large weekly volume of stock trades, such as an average weekly turnover of one or two percent of the outstanding shares; 2) That a significant number of securities analysts followed and reported on a company’s stock during the class" }, { "docid": "2566031", "title": "", "text": "cases as Plaintiffs have not sufficiently alleged that the SAI stock was traded on an efficient market. An efficient market has been defined as one that obtains material information about a company and rapidly reflects that new information in the price of the stock. Hurley v. Federal Deposit Ins. Corp., 719 F.Supp. 27, 34 (D.Mass.1989). Defendants correctly point out that a plaintiff seeking to invoke the fraud on the market theory must allege either that the stock they purchased or sold was actively traded on a well-developed, efficient market or facts which give rise to such an inference. Greenberg v. Boettcher & Co., 755 F.Supp. 776, 781 (N.D.Ill. 1991); Cammer v. Bloom, 711 F.Supp. 1264, 1278 (D.N.J.1989); Hurley, 719 F.Supp. at 34. In the absence of an allegation of efficiency, however, courts are divided as to what extent a plaintiff must specifically plead facts of a well-developed market. In Hurley, for example, the district court, requiring a rather minimal showing, held that allegations that a bank issued approximately five million shares of stock which were traded on an over-the-counter market with a volume of more than 19.3 million shares traded during the class period were sufficient. 719 F.Supp. at 34. Other courts, to the contrary, have demanded a far more detailed factual statement regarding the nature of the market. In Cammer, the district court, discussing the concept of market efficiency at great length, mentioned several examples of facts which, if alleged, would prove helpful in meeting the efficient market requirement: (1) there exists an average weekly trading volume during the applicable period in excess of a certain number of shares, (2) a significant number of securities analysts followed and reported on the company’s stock during the applicable period, (3) the stock had numerous market makers and arbitrageurs, (4) the company was entitled to file an S-3 Registration Statement in connection with public offerings or, if ineli gible, the ineligibility was the result of timing factors and not because the minimum stock requirements set forth in the Form S-3 instructions were not met, and (5) an historical showing of immediate price" }, { "docid": "4502108", "title": "", "text": "1160 & n. 9 (3d Cir.1986) (citing Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir.), cert, denied sub nom. Wasserstrom v. Eisenberg, 474 U.S. 946, 106 S.Ct. 342, 88 L.Ed.2d 290 (1985))). The reliance of a plaintiff on alleged misstatements or omissions must be reasonable; the burden of proof is upon the defendant to show reliance was not reasonable. See Kline, 24 F.3d at 493 (citing Straub v. Vaisman & Co., 540 F.2d 591, 598 (1976)). Where the security involved is traded in an open and efficient market, a plaintiff need not show individual and specific reliance on the misrepresentation of a defendant. A plaintiff may instead rely upon the fraud on the market theory and claim only that he or she suffered injury in the capacity as a purchaser or seller of a security in such a market. “ ‘The fraud on the market theory is based on the hypothesis that, 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.’ ” See Cammer v. Bloom, 711 F.Supp. 1264, 1276 (D.N.J.1989) (quoting Basic v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)). See also Hayes, 982 F.2d at 106. In Peil, the Circuit held a showing of a fraud on the market may result in a rebuttable presumption of reliance by a plaintiff who purchases a security in an open and developed market. See 806 F.2d at 1161; see also Zlotnick, 836 F.2d at 821. Where a purchaser of a stock establishes he or she made the purchase in an “ ‘open and developed market’ ” and the defendant had made a material misrepresentation, it “‘will [be] presume[d] that the misrepresentations occasioned an increase in the stock’s value that, in turn, induced the plaintiffs to purchase the stock.’ ” Zlotnick, 836 F.2d at 821 (quoting Peil, 806 F.2d at 1161). Because a Rule 10-5 claim is a “fraud” claim, a Section 10(b) plaintiff must satisfy the pleading requirements of Rule 9(b). See In re Advanta, 180 F.3d at 530-35;" }, { "docid": "12695960", "title": "", "text": "must be reasonable, even though the burden of proof is upon the defendant to show reliance was not reasonable. See Kline, 24 F.3d at 493 (citing Straub v. Vaisman & Co., 540 F.2d 591, 598 (1976)). Where the security involved is traded in an open and efficient market, a plaintiff need not show individual and specific reliance on the misrepresentation of a defendant. See Hayes, 982 F.2d at 106. A plaintiff may instead rely upon the fraud on the market theory and claim only that he or she suffered injury in the capacity of a purchaser or seller of a security in such a market. See id.; Cammer, 711 F.Supp. at 1276. In Peil, the Circuit held a showing of a fraud on the market may result in a rebutta-ble presumption of reliance by a plaintiff who purchases a security in an open and developed market. See 806 F.2d at 1161; see also Basic, 485 U.S. at 246-48, 108 S.Ct. 978 (adopting the presumption of reliance pursuant to the fraud on the market theory); Zlot-nick, 836 F.2d at 821. In determining whether a particular market is open and developed, consideration should be given to the average weekly trading volume during the class period, the number of securities analysts who followed and reported on a company’s stock, the number of market makers in the stock, the ability of the company to file an S-3 Registration Statement in connection with public offerings, and the existence of empirical facts demonstrating a causal relationship between corporate events or financial releases and immediate responses in price. See Cammer, 711 F.Supp. at 1286-87. Where a purchaser of a stock establishes he or she made the purchase in an “ ‘open and developed market’ ” and the defendant had made a material misrepresentation, it “ ‘will [be] presume[d] that the mis representations occasioned an increase in the stock’s value that, in turn, induced the plaintiffs to purchase the stock.’” Zlotnick, 836 F.2d at 821 (quoting Peil, 806 F.2d at 1161). As to claims brought pursuant to the Exchange Act, Defendants do not oppose the certification of a" }, { "docid": "5581494", "title": "", "text": "“fraud on the market” presumption of reliance. Under this theory, the court presumes that “an investor who buys or sells stock at the price set by the market does so in reliance on the integrity of the market price.” Gariety, 368 F.3d at 367 (quoting Basic v. Levinson, 485 U.S. 224, 247, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)). If the link is severed by a showing that market analysts no longer consider the share price as reflecting value, then reliance can no longer be presumed and individual issues predominate over class issues. BearingPoint, 232 F.R.D. at 539-540. In an efficient market, the prices of actively traded securities are presumed to incorporate all publicly available information. Id. Thus, to be entitled to the presumption, Plaintiffs need only demonstrate that the company’s shares traded in an efficient market. Id. The Fourth Circuit has explained that “to determine whether a security trades in an efficient market, a court should consider factors such as, among others, whether the security is actively traded, the volume of trades, and the extent to which it is followed by market professionals.” Gar-iety, 368 F.3d at 368 (citing Cammer v. Bloom, 711 F.Supp. 1264, 1285-87 (D.N.J. 1989)) (examining (1) average trading volume, (2) number of securities analysts following the stock, (3) number of market makers, (4) whether the company was entitled to file an S-3 Registration Statement, if relevant, and (5) evidence of a cause and effect relationship between unexpected news and stock-price changes). Here, Plaintiffs have met their burden of showing that Mills stock traded in an efficient market throughout the class period ending on August 10, 2006. On February 23, 2006, Mills disclosed that the financial restatement would involve more accounting issues and have substantially greater impact than previously expected. But this press release was couched in terms of probability, e.g., “additional adjustments may be identified,” which “could be material, either individually or in the aggregate.” Mills informed the market that it was withdrawing its 2005 earnings and FFO guidance and that those numbers would be significantly below market expectations, but did not quantify the expected" }, { "docid": "4084805", "title": "", "text": "theory to apply, however, it follows that a plaintiff must show that the market in which the stock traded was “efficient.” Freeman v. Laventhol & Horwath, 915 F.2d 193, 197-98 (6th Cir.1990); Greenberg v. Boettcher & Co., 755 F.Supp. 776, 781 (N.D.Ill.1991); Cammer v. Bloom, 711 F.Supp. 1264, 1285 & n. 34 (D.N.J.1989). An efficient market has been defined as one that obtains material information about a company and rapidly reflects that new information in the price of the stock. Hurley v. Federal Deposit Ins. Corp., 719 F.Supp. 27, 34 (D.Mass.1989). Courts have suggested that the following factors may indicate an efficiently traded security: (1) a large weekly trading volume, (2) a significant number of securities analysts followed and reported on the company’s stock during the applicable period, (3) the stock had numerous market makers and arbitrageurs, (4) the company was entitled to file an S-3 Registration Statement in connection with public offerings or, if ineligible, the ineligibility was the result of timing factors and not because the minimum stock requirements set forth in the Form S-3 instructions were not- met, and (5) an historical showing of immediate price response to unexpected corporate events or financial releases. See, e.g., Cammer, 711 F.Supp. at 1285-87; Freeman, 915 F.2d at 199; Hurley, 719 F.Supp. at 34. Defendants in the instant case argue that there is no evidence that the AmeriFirst securities traded in an efficient market and, therefore, that a presumption of reliance is not available here. In support of their position, Defendants first assert that an over-the-counter (“OTC”) market, such as the one in which AmeriFirst securities traded, is per se inefficient. Contrary to Defendants contention, however, this Court notes that the majority of courts considering the issue have held that the fact that securities traded on an OTC market, rather than on a national stock exchange, will not necessarily defeat a finding of market efficiency provided there is evidence that the stock at issue traded in an environment where material information concerning the company is widely available and accurately reflected in the price of the stock. See, e.g., Cammer, 711" }, { "docid": "2566100", "title": "", "text": "context and a sale in the primary market to provide continuing validity to the court’s decision. For example, it is not as reasonable to assume that misinformation in an undeveloped market is as likely to affect market price. Indeed, in the case of a new issue, the price is set by the offeror and underwriters, not the market. Lipton, 734 F.2d at 746. . The following factors are indicia of an efficient market: 1) One which a large number of persons can buy or sell 2) One which has a relatively high level of activity and frequency, and for which trading information (e.g. price and volume) is widely available. It usually has continuity and liquidity (the ability to absorb a reasonable amount of trading with relatively small price changes). 3) One which rapidly reflects new information in price. 4 Bromberg & Lowenfels, Securities Fraud and Commodities Fraud, § 8.6 (Aug.1988). See also Cammer v. Bloom, 711 F.Supp. 1264, 1276 n. 17 (D.N.J.1989) (quoting Bromberg). . While the Supreme Court in Basic did not explicitly approve the Sixth Circuit’s requirement that \"a plaintiff must allege and prove ... that the shares were traded on an efficient market,’’ 485 U.S. at 248 n. 27, 108 S.Ct. at 992 n. 27, 99 L.Ed.2d at 219 n. 27, courts have interpreted the Court's discussion of the lower court opinion as implicitly approving of this requirement. See, e.g., Freeman v. Laventhol & Horwath, 915 F.2d 193, 197-98 (6th Cir.1990): Greenberg v. Boettcher & Co., 755 F.Supp. 776, 781 (N.D.Ill. 1991); Cammer v. Bloom, 711 F.Supp. at 1285 n. 34; Stinson v. Van Valley Development Corp., 714 F.Supp. 132, 135 (E.D.Pa.1989), aff’d, 897 F.2d 524 (3d Cir.1990). . Although brought as a motion to dismiss, the court treated the motion as a motion for summary judgment under Rule 56, Fed.R.Civ.P., because Defendant PMM asserted, as a matter of law, that the stock traded in an inefficient market. Considering evidence outside the original pleading, the court found there was a genuine issue of material fact concerning the efficiency of the market at issue. . Several of the" } ]

[ { "docid": "22561563", "title": "", "text": "earned on the Grumman investment with what the Plan would have earned had the funds been available for other Plan purposes. If the latter amount is greater than the former, the loss is the difference between the two; if the former is greater, no loss was sustained. See id.; Restatement (Second) of Trusts § 205(c) (1959); see also In re Imperial “400” National, Inc., 456 F.2d 926, 931 (3d Cir.1972); Perkins v. Waukesha National Bank, 290 F.2d 912, 918 (7th Cir.), cert. denied, 368 U.S. 928, 82 S.Ct. 363, 7 L.Ed.2d 191 (1961). In determining what the Plan would have earned had the funds been available for other Plan purposes, the district court should presume that the funds would have been treated like other funds being invested during the same period in proper transactions. Where several alternative investment strategies were equally plausible, the court should presume that the funds would have been used in the most profitable of these. The burden of proving that the funds would have earned less than that amount is on the fiduciaries found to be in breach of their duty. Any doubt or ambiguity should be resolved against them. See Wootton Land & Fuel Co. v. Ownbey, 265 F. 91, 99 (8th Cir.1920) (burden of proof in an accounting is on fiduciary to prove the amount of any credit); Vinlis Construction Co. v. Roreck, 30 App.Div.2d 668, 291 N.Y.S.2d 924 (2d Dep’t 1968) (burden of proof in an accounting is on fiduciary to show he has derived no unfair advantage from his relationship), modified on other grounds, 27 N.Y.2d 687, 262 N.E.2d 215, 314 N.Y.S.2d 8 (1970); cf. Armory v. Delamirie, 93 Eng.Rep. 664 (1722) (the “Chimney Sweep’s Jewel Case”) (plaintiff bailed jewel with defendant, who failed to return it: held “unless the defendant ... produce the jewel, and shew it not to be of the finest water, [the jury] should presume the strongest against him, and make the value of the best jewels the measure of [plaintiff’s] damages”). This is nothing more than application of the principle that, once a breach of trust is" } ]

[ { "docid": "2154709", "title": "", "text": "the Fund’s portfolio continued to increase until they reached about 80% in October 1984. At that point Grace and GCI were fired. At the same time as the percentage of the Fund’s equity holdings was increasing, the value of those holdings was decreasing. In June 1983, there had been an unrealized gain of $1,015,651 on equities; by October 1984, there was an unrealized loss of $3,642,045. In August 1985, the Trustees brought suit, alleging that both defendants had breached a fiduciary duty, 29 U.S.C. § 1104(a)(1)(D), by failing to abide by the documents governing the plan and were thus liable to the Fund, under section 1109(a), for any losses the Fund sustained as a result of the breach. The district court granted a motion for partial summary judgment on the issue of liability. Dardaganis v. Grace Capital Inc., 664 F.Supp. 105 (S.D.N.Y.1987). The Court held that section 1104’s requirement that fiduciaries abide by the plan documents together with the Agreement’s provision that GCI manage the account “in strict conformity with the investment guidelines” required the Court to conclude, as a matter of law, that “[a]ny violation of the terms of [the] Agreement constitutes a breach of Grace Capital’s fiduciary duty under § 1104(a)(1)(D) and creates liability to the Fund under 29 U.S.C. § 1109.” Id. at 108. The District Court rejected defendants’ argument that there were factual disputes as to whether preferred stock was subject to the equity percentage limit and whether the percentage was intended to be a strict limit or only a rough guideline. The Court found that the Agreement required GCI to conform to the 50% limitation — by liquidating stock, if necessary— even when cash withdrawals by the Trustees to meet Fund obligations resulted in an increase in the percentage of common stock above the 50% line. The Court also rejected defendants’ arguments that the Trustees waived strict adherence to the 50% Guideline by not earlier enforcing it while aware of its violation. The Court held that such a defense under New York contract law is not a valid defense in an action for breach of" }, { "docid": "2154719", "title": "", "text": "attempted to persuade the District Court that its investment decisions were prudent, it made no showing that it would have been imprudent to comply with the 50% ceiling or that such compliance would have required it to breach a fiduciary duty imposed by any provision of ERISA distinct from that of section 1104(a)(1)(D). The District Court was correct in holding that GCI’s disregard for the 50% ceiling made it liable for any losses to the plan resulting from the breach, as provided in section 1109(a), without regard to whether the investment decisions seemed prudent at the time. II. Personal Liability of Grace The District Court ruled that H. David Grace was personally liable to the Fund for any losses resulting from a breach of fiduciary duty on his part. On appeal, Grace argues that our decision in Lowen v. Tower Asset Management, 829 F.2d 1209 (2d Cir.1987), held that personal liability under section 1109 can be imposed only where the individual has used the corporate form as a shield from ERISA liability. In essence, Grace argues that the District Court was wrong to find him personally liable absent circumstances sufficient to warrant piercing GCI’s corporate veil. However, this case is unlike Lowen and other decisions dealing with the liability of non -fiduciaries under section 1109, see Thornton v. Evans, 692 F.2d 1064, 1077-78 (7th Cir.1982); cf. Leddy v. Standard Drywall, Inc., 875 F.2d 383 (2d Cir.1989) (officer of employer can be personally liable even if he did not meet statutory definition of “employer”). The District Court found that Grace “exercised complete discretion over the disposition of the Fund assets,” 664 F.Supp. at 112, and hence was a “fiduciary” within the meaning of 29 U.S.C. § 1002(21)(A) (1982). In light of the language of the Agreement (“H. David Grace shall personally supervise and manage the Account”) and Grace’s own admission that he personally exercised discretion over how the Fund’s portfolio was invested, we agree that there is no factual dispute as to Grace’s fiduciary status. Grace, however, characterizes the District Court’s approach as imposing “strict liability” on any individual who exercises" }, { "docid": "10462194", "title": "", "text": "and multiplying it by the return made on the bonds during that same period, with any appropriate adjustments. The resulting number would be the amount that should have been made. Then the loss on the amount of money improperly invested in stocks should be calculated, possibly as a percentage of the total loss on stocks during that period. The total loss would be the amount that should have been made, had the money been invested in bonds similar to those comprising the remainder of the portfolio, minus the loss from investing that 4% to 29% in stocks. Because these and other factual issues are present, summary judgment on the issue of damages is denied. Personal Liability under ERISA While Grace Capital is clearly liable for losses resulting from violations of the Agreement as a fiduciary under ERISA, 29 U.S.C. § 1002(21)(A), an issue is presented as to the personal liability of Grace as a fiduciary under that section. Section 1002(21)(A) provides in pertinent part: a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Grace was the president and chief executive officer and principal shareholder of Grace Capital. He has acknowledged that he was solely responsible for all investment decisions made on behalf of the Fund account, although Grace Capital was the only signatory to the Agreement. Consistent with that acknowledgment, though not dis-positive of this claim, is the condition in the Agreement that Grace was to “personally supervise and manage the Account in behalf of [Grace Capital].” Agreement if 4. Therefore, there is no dispute that Grace, as well as Grace Capital, falls within ERISA’s definition of a fiduciary. Grace contends," }, { "docid": "2154711", "title": "", "text": "fiduciary duty under ERISA. 664 F.Supp. at 109-10. With respect to Grace, the Court found that, although he did not sign the Agreement in his personal capacity, he nevertheless became a fiduciary to the Plan because he was not only president, chief executive officer, and principal shareholder of GCI, but also was “solely responsible for all investment decisions made on behalf of the Fund account.” Id. at 111. The Court initially denied summary judgment as to damages, finding that neither theory of “losses” to the Plan, 29 U.S.C. § 1109(a), offered by the parties was in accord with our opinion in Donovan v. Bierwirth, 754 F.2d 1049 (2d Cir.1985). Judge Sweet interpreted Donovan as requiring, in this context, a comparison of what the Plan actually earned with what it would have earned had GCI invested only 50% of the Fund’s account in equities. For the purpose of litigating the damages question, Judge Sweet directed the parties to assume that the money invested in these excess holdings of stock would have been invested in the Fund’s non-equity holdings during the relevant time period and would have returned a comparable yield. In a second decision, Dardaganis v. Grace Capital Inc., 684 F.Supp. 1196 (S.D.N.Y.1988), the Court analyzed the expert affidavits of both sides and granted summary judgment to the plaintiffs on the issue of damages. After defendants’ motion for reargument was denied and the District Court made some minor alterations in its judgment, this appeal followed. Discussion I. Scope of Fiduciary Duty Under Section 1104(a)(1) GCI raises two principal objections to the District Court’s liability holding. First, it maintains that the Court erred in concluding, at the summary judgment stage, that GCI violated the Guidelines because there was a dispute as to whether the parties intended the 50% ceiling to be a strict limit or only a rough benchmark, as GCI maintains is the custom in the industry. Second, it argues that a fiduciary’s failure to abide by the plan documents is not necessarily a breach of duty, but that liability requires conduct that was not prudent under the circumstances. The District" }, { "docid": "2154718", "title": "", "text": "e.g., Brock v. Citizens Bank of Clovis, 841 F.2d 344, 346 (10th Cir.), cert. denied, — U.S. —, 109 S.Ct. 82, 102 L.Ed.2d 59 (1988) (failure to diversify). The Supreme Court’s decision in Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985), is not to the contrary. In that case, plan trustees relied on a statement in the plan documents granting presumptive validity to their interpretations of the plan’s provisions. The Court noted that section 1104(a)(1)(D) does not go so far as to excuse fiduciaries from their duties under other provisions of ERISA merely because they are acting pursuant to a provision of a plan document. See 472 U.S. at 568, 105 S.Ct. at 2839. The Court went on to say, however, that absent an “inherent inconsistency” between a provision in a plan document and a fiduciary duty expressed elsewhere in ERISA, the trustees’ assertion of contractual rights pursuant to the plan documents was valid. Id. In the present case, although GCI attempted to persuade the District Court that its investment decisions were prudent, it made no showing that it would have been imprudent to comply with the 50% ceiling or that such compliance would have required it to breach a fiduciary duty imposed by any provision of ERISA distinct from that of section 1104(a)(1)(D). The District Court was correct in holding that GCI’s disregard for the 50% ceiling made it liable for any losses to the plan resulting from the breach, as provided in section 1109(a), without regard to whether the investment decisions seemed prudent at the time. II. Personal Liability of Grace The District Court ruled that H. David Grace was personally liable to the Fund for any losses resulting from a breach of fiduciary duty on his part. On appeal, Grace argues that our decision in Lowen v. Tower Asset Management, 829 F.2d 1209 (2d Cir.1987), held that personal liability under section 1109 can be imposed only where the individual has used the corporate form as a shield from ERISA liability. In essence, Grace" }, { "docid": "2154724", "title": "", "text": "rate of return equal to that of the non-equity securities held by the Fund during this time period. Defendants raise several objections to this method of calculating damages. First, they suggest that even if they breached a duty, there were no “losses” to the plan because the sum of the Fund’s assets and the cash withdrawn to meet Fund obligations increased during their tenure. This argument ignores our opinion in Donovan v. Bierwirth, supra, where we said that an “appropriate remedy in eases of breach of fiduciary duty is the restoration of the trust beneficiaries to the position they would have occupied but for the breach of trust.” 754 F.2d at 1056. If, but for the breach, the Fund would have earned even more than it actually earned, there is a “loss” for which the breaching fiduciary is liable. Next, defendants argue that the District Court’s averaging technique is incorrect. They maintain that the Court must look at specific investment decisions and determine whether the Fund lost any money as a result of those particular decisions. Under this method, the trial judge would have to determine which purchase or refusal to sell caused the portfolio to exceed the 50% limit. This would give GCI an opportunity to show that the decisions that resulted in excess equity generally were associated with successful stocks. Hence, absent the breach, the portfolio would have contained a greater percentage of less successful stocks and would not have performed as well as the District Court presumed, using its averaging technique. Although Donovan did not encounter this precise contention, the District Court correctly interpreted that decision not to require inquiries into specific investment decisions. Where, as in this case, the breach arises from a pattern of investment rather than from investment in a particular stock, courts will rarely be able to determine, with any degree of certainty, which stock the investment manager would have sold or declined to buy had he complied with investment guidelines. Drawing upon the common law of trusts in Donovan, we said that the District Court should presume that, but for the breach," }, { "docid": "2154722", "title": "", "text": "such plan any losses to the plan resulting from each such breach.” 29 U.S.C. § 1109(a) (emphasis added). Moreover, the Department of Labor’s interpretive bulletins concerning ERISA anticipate and permit the efforts of corporate plan fiduciaries to indemnify employees who perform fiduciary services. 29 C.F.R. § 2509.75-4 (1988). The department’s regulations also interpret section 1002’s definition of “fiduciary” as extending to corporate officers, directors, and partners when they personally render investment advice through their affiliated corporation. 29 C.F.R. § 2510.8-21 (1988). We need not consider the issue of personal liability where non-managerial employees merely render advice or appear to exercise discretionary authority though their decisions must be approved by corporate officers; Grace not only managed the account personally but was also president and chief executive officer of GCI. Under these circumstances, he should have fully anticipated his exposure to personal liability as a fiduciary when he disregarded the 50% ceiling. III. Damages Under Section 1109 Section 1109 provides that a fiduciary who has breached a duty owed to a plan is liable for “any losses to the plan resulting from each such breach.” In this case, the District Court concluded that the measure of the damages caused by investing more than 50% of the Fund’s assets in equities was the difference between the earnings of the Fund as invested and what the earnings would have been if the 50% limit had been observed and the assets had been invested in non-equity securities instead. The Court then interpreted our opinion in Donovan v. Bierwirth, 754 F.2d 1049 (2d Cir.1985), as permitting an averaging technique. In essence, since it is impossible to know after the fact which stocks GCI would have sold to comply with the 50% guideline, the Court assumed that at the end of each reporting period GCI would have liquidated an equal proportion of each stock held, sufficient to reduce the total stock holdings to 50% of the Fund’s assets (with all holdings valued at cost). The Court then assumed that the money generated by reinvesting the proceeds from the sale of the excess shares would have earned a" }, { "docid": "2154721", "title": "", "text": "control or discretion over the assets of an ERISA plan, even when the individual acts through a corporate entity. This is not so. Absent circumstances that warrant disregarding the corporate form under the standards set forth in Lowen, individuals are not necessarily liable for any and all of the corporation’s fiduciary breaches. First, they are liable as fiduciaries under section 1109 only if they personally breach a fiduciary duty. Second, they are ordinarily not liable for breaches occurring with respect to assets of the plan over which they do not exercise discretionary authority. See 29 C.F.R. § 2510.3-21 (1988). Third, such an individual fiduciary faces personal liability for the acts of a co-fiduciary corporation only in certain specific instances. See 29 U.S.C. § 1105. Grace should hardly be surprised that by personally exercising control over the Fund’s account he assumed the risk of personal liability. See Yeseta v. Baima, 837 F.2d 380, 386 (9th Cir.1988). ERISA specifies that a fiduciary who breaches a duty to the plan “shall be personally liable to make good to such plan any losses to the plan resulting from each such breach.” 29 U.S.C. § 1109(a) (emphasis added). Moreover, the Department of Labor’s interpretive bulletins concerning ERISA anticipate and permit the efforts of corporate plan fiduciaries to indemnify employees who perform fiduciary services. 29 C.F.R. § 2509.75-4 (1988). The department’s regulations also interpret section 1002’s definition of “fiduciary” as extending to corporate officers, directors, and partners when they personally render investment advice through their affiliated corporation. 29 C.F.R. § 2510.8-21 (1988). We need not consider the issue of personal liability where non-managerial employees merely render advice or appear to exercise discretionary authority though their decisions must be approved by corporate officers; Grace not only managed the account personally but was also president and chief executive officer of GCI. Under these circumstances, he should have fully anticipated his exposure to personal liability as a fiduciary when he disregarded the 50% ceiling. III. Damages Under Section 1109 Section 1109 provides that a fiduciary who has breached a duty owed to a plan is liable for “any losses" }, { "docid": "2154706", "title": "", "text": "JON O. NEWMAN, Circuit Judge: This appeal concerns enforcement of the duty ERISA imposes upon fiduciaries of employee benefit plans to act “in accordance with the documents and instruments governing the plan.” 29 U.S.C. § 1104(a)(1)(D) (1982). Grace Capital Inc. (“GCI”) and H. David Grace (“Grace”) appeal from a judgment entered in the District Court for the Southern District of New York (Robert W. Sweet, Judge) awarding the trustees of the Retirement Fund of the Fur Manufacturing Industry (the “Fund”) $1,507,174. The Court concluded that GCI and Grace breached their fiduciary duties to the Fund by deviating from the written agreement governing GCI’s actions as investment manager of the Fund’s assets. We affirm the District Court’s finding of liability as to GCI and its finding of personal liability as to Grace but remand for further fact-finding on one of the damage issues. Background GCI is a registered investment advisor. Grace is president, chief executive officer, and principal shareholder of GCI. On August 28,1981, GCI entered into a four-page Investment Management Agreement (the “Agreement”) with the plaintiffs, who are trustees (the “Trustees”) of the Fund. Under the terms of the Agreement, GCI became investment manager of the assets of the Fund and promised to “manage the [Fund’s] Account in strict conformity with the investment guidelines promulgated by the Trustees from time to time and with all applicable Federal and State laws and regulations.” The Agreement further provided that Grace would “personally supervise and manage the Account” in behalf of GCI and that any changes in the Trustees’ guidelines would have to be in writing in order to be effective. Attached as a one-page exhibit to the Agreement was a list of four guidelines (the “Guidelines”), limiting GCI’s investment discretion. Central to the present appeal is the first of these Guidelines, which placed the following restriction on the proportion of fund assets that GCI could invest in common stocks: (1) Common stocks held shall not exceed 25% of the cost of the securities in the Account. Changes in the market value after the purchase of a security which increases [sic] the proportion" }, { "docid": "10462192", "title": "", "text": "in which closed-out transactions in equity positions completed before Grace’s termination totalled almost $4 million. He further asserts that equity trades during the period February to October, 1984 netted $67,000. A question of fact remains as to the amount of loss, because neither theory asserted by the parties is the correct one for computing loss. In Donovan v. Bierwirth, 754 F.2d 1049 (2d Cir.1985), the Second Circuit held that the measure of loss requires “a comparison of what the Plan actually earned [on the improper investment] with what the Plan would have earned had the funds been available for other Plan purposes.” Id. at 1056. Further, in determining what the Fund would have earned had funds been available, this court “should presume that the funds would have been treated like other funds being invested during the same period in proper transactions.” Id. The Second Circuit noted: such a determination is of necessity somewhat arbitrary ... without purporting to catalogue the relevant factors exhaustively, they include at least (1) market conditions and abnormalities affecting the price of the improperly purchased stock; (2) such conditions as they affect the price of other assets of the plan at issue; (3) the court’s determination of the relative price advantages to the plan of selling or holding the stock; and (4) the interests of the beneficiaries of the plan. Id. at 1058. The starting point of the calculation should be the amount of stock held that exceeded the 50% limit, ranging from 4% on June 30, 1983 to 29% on September 28, 1984. It is only this percentage that can give rise to any losses, since investments in stocks up to 50% were within the letter of the Agreement. Using Donovan’s command to “presume that the funds would have been treated like other funds being invested during the same period in proper transactions,” 754 F.2d at 1056, it is appropriate to calculate damages by taking the amount of money improperly invested in stocks during the period from June 30, 1983 on, that is, the amount represented by the excesses of 4% to 29% (or more)," }, { "docid": "12528622", "title": "", "text": "565, 83 L.Ed.2d 506 (1984). The purpose of a damage award against a breaching fiduciary is “restoration of the trust beneficiaries to the position they would have occupied but for the breach of trust.” Donovan v. Bierwirth, 754 F.2d at 1056. That purpose subsumes “the power to award interest at a rate that will put the [pension plan] in the position that it would have occupied but for the ... breach.” Katsaros, 744 F.2d at 281. Moreover, in this Circuit, “[a]n award of prejudgment interest is in the first instance, compensatory, and is customary in cases involving a breach of fiduciary duties.” Rolf v. Blyth, Eastman Dillon & Co., 637 F.2d 77, 87 (2d Cir.1980). Grace began to exceed the 50% equity limit in June 1983, and the Fund began at that point to incur losses from Grace’s wrongful actions. The June 26 Opinion specifically held, following Donovan v. Bierwirth, that these losses include what the Fund would have earned but for the excessive investment in equities. To restore the Fund beneficiaries to the position they would have held but for Grace’s breach of fiduciary duty, interest must be awarded through the date of judgment. Absent Grace’s breach of duty, the Fund would have had the money lost on the excess equity investments and would have invested it with the rest of its assets. In this respect, the lost earnings are not so much “prejudgment interest” in the classic common law sense as a necessary element of the make-whole remedy under 29 U.S.C. § 1109. Grace’s contention that prejudgment interest for the period prior to his termination should be awarded only at the prevailing 90-day Treasury Bill rate is inconsistent with ERISA and directly contradicts the June 26 Opinion which stated that “it is appropriate to calculate damages by taking the amount of money improperly invested in stocks during the period from June 30, 1983 on, that is, the amount represented by the excesses of 4% to 29% (or more), and multiplying it by the return made on the bonds during that same period, with any appropriate adjustments.” June 26" }, { "docid": "2154710", "title": "", "text": "Court to conclude, as a matter of law, that “[a]ny violation of the terms of [the] Agreement constitutes a breach of Grace Capital’s fiduciary duty under § 1104(a)(1)(D) and creates liability to the Fund under 29 U.S.C. § 1109.” Id. at 108. The District Court rejected defendants’ argument that there were factual disputes as to whether preferred stock was subject to the equity percentage limit and whether the percentage was intended to be a strict limit or only a rough guideline. The Court found that the Agreement required GCI to conform to the 50% limitation — by liquidating stock, if necessary— even when cash withdrawals by the Trustees to meet Fund obligations resulted in an increase in the percentage of common stock above the 50% line. The Court also rejected defendants’ arguments that the Trustees waived strict adherence to the 50% Guideline by not earlier enforcing it while aware of its violation. The Court held that such a defense under New York contract law is not a valid defense in an action for breach of fiduciary duty under ERISA. 664 F.Supp. at 109-10. With respect to Grace, the Court found that, although he did not sign the Agreement in his personal capacity, he nevertheless became a fiduciary to the Plan because he was not only president, chief executive officer, and principal shareholder of GCI, but also was “solely responsible for all investment decisions made on behalf of the Fund account.” Id. at 111. The Court initially denied summary judgment as to damages, finding that neither theory of “losses” to the Plan, 29 U.S.C. § 1109(a), offered by the parties was in accord with our opinion in Donovan v. Bierwirth, 754 F.2d 1049 (2d Cir.1985). Judge Sweet interpreted Donovan as requiring, in this context, a comparison of what the Plan actually earned with what it would have earned had GCI invested only 50% of the Fund’s account in equities. For the purpose of litigating the damages question, Judge Sweet directed the parties to assume that the money invested in these excess holdings of stock would have been invested in the Fund’s" }, { "docid": "22820726", "title": "", "text": "n. 2 (W.D.Va.1990) (disallowing punitive damages even though conduct challenged in violation of fiduciary duty was fraudulent). Our conclusion that punitive damages are not available under § 502(a)(2) is reinforced by the virtually unanimous interpretation of § 502(a)(3)’s similar language— “appropriate equitable relief” — as not allowing such recovery. See, e.g., Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821, 825 (1st Cir.), cert. denied, 488 U.S. 909, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988); Sokol v. Bernstein, 803 F.2d 532, 538 (9th Cir.1986). See also O’Neil v. Gencorp, Inc., 764 F.Supp. 833, 835 (S.D.N.Y.1991) (collecting cases). The similar language in these two statutory provisions of the same-Act should be interpreted in the same way. D. Prejudgment Interest As a general rule, a court has wide discretion under § 409(a), pursuant to its authority to award “appropriate relief,” to award prejudgment interest. See, e.g., Dardaganis v. Grace Capital, Inc., 684 F.Supp. 1196, 1199 (S.D.N.Y.1988), aff'd in part, 889 F.2d 1237 (2d Cir.1989). Here prejudgment interest was awarded pursuant to 26 U.S.C. § 6621 at the adjusted-prime rate set by the Secretary of the Treasury. Prejudgment interest is not intended to penalize the trustee but serves as compensation for the use of money withheld. See Lindeman, 853 F.2d at 1306. Hence, such an award must be made with an eye toward putting the plan in the position it would have occupied but for the breach. See Bierwirth, 754 F.2d at 1056. Assessing the appropriate amount of interest requires a comparison of what the plan earned during the time in question and what it would have earned had the money lost due to the breach been available. One must look to the return on investments held by the plan to determine the appropriate interest rate to be applied under § 409. The burden is on defendant to demonstrate the plan would not have placed the money in the most profitable of equally plausible investment alternatives. See id. In this case there was evidence that the funds’ investments earned only from five to eight percent interest. Plaintiff introduced no evidence suggesting any other" }, { "docid": "2154723", "title": "", "text": "to the plan resulting from each such breach.” In this case, the District Court concluded that the measure of the damages caused by investing more than 50% of the Fund’s assets in equities was the difference between the earnings of the Fund as invested and what the earnings would have been if the 50% limit had been observed and the assets had been invested in non-equity securities instead. The Court then interpreted our opinion in Donovan v. Bierwirth, 754 F.2d 1049 (2d Cir.1985), as permitting an averaging technique. In essence, since it is impossible to know after the fact which stocks GCI would have sold to comply with the 50% guideline, the Court assumed that at the end of each reporting period GCI would have liquidated an equal proportion of each stock held, sufficient to reduce the total stock holdings to 50% of the Fund’s assets (with all holdings valued at cost). The Court then assumed that the money generated by reinvesting the proceeds from the sale of the excess shares would have earned a rate of return equal to that of the non-equity securities held by the Fund during this time period. Defendants raise several objections to this method of calculating damages. First, they suggest that even if they breached a duty, there were no “losses” to the plan because the sum of the Fund’s assets and the cash withdrawn to meet Fund obligations increased during their tenure. This argument ignores our opinion in Donovan v. Bierwirth, supra, where we said that an “appropriate remedy in eases of breach of fiduciary duty is the restoration of the trust beneficiaries to the position they would have occupied but for the breach of trust.” 754 F.2d at 1056. If, but for the breach, the Fund would have earned even more than it actually earned, there is a “loss” for which the breaching fiduciary is liable. Next, defendants argue that the District Court’s averaging technique is incorrect. They maintain that the Court must look at specific investment decisions and determine whether the Fund lost any money as a result of those particular" }, { "docid": "2154708", "title": "", "text": "to more than 25% for common stocks shall not violate the standards. Over the three years that GCI acted as advisor to the Fund, this ceiling on common stock holdings was raised twice: to 35% in May 1982 and to 50% in September 1982. Both of these changes were recorded in the minutes of a Trustees’ meeting, a form of documentation that both parties agree satisfies the Agreement’s requirement that changes in the Guidelines be in writing. It is also undisputed that at the time of both the May and September 1982 Trustees’ meetings, where the Trustees approved a raise in the ceiling, the percentage (on a cost basis) of common stock holdings already exceeded the applicable limit. Prior to a February 1984 Trustees’ meeting, GCI proposed a further increase in the ceiling to 70%. During the eight-month period preceding this meeting, the common stock percentage had exceeded the 50% ceiling each month by an average of roughly 15 percentage points. The Trustees refused to increase the ceiling above 50%. Nevertheless, the equity holdings of the Fund’s portfolio continued to increase until they reached about 80% in October 1984. At that point Grace and GCI were fired. At the same time as the percentage of the Fund’s equity holdings was increasing, the value of those holdings was decreasing. In June 1983, there had been an unrealized gain of $1,015,651 on equities; by October 1984, there was an unrealized loss of $3,642,045. In August 1985, the Trustees brought suit, alleging that both defendants had breached a fiduciary duty, 29 U.S.C. § 1104(a)(1)(D), by failing to abide by the documents governing the plan and were thus liable to the Fund, under section 1109(a), for any losses the Fund sustained as a result of the breach. The district court granted a motion for partial summary judgment on the issue of liability. Dardaganis v. Grace Capital Inc., 664 F.Supp. 105 (S.D.N.Y.1987). The Court held that section 1104’s requirement that fiduciaries abide by the plan documents together with the Agreement’s provision that GCI manage the account “in strict conformity with the investment guidelines” required the" }, { "docid": "2154726", "title": "", "text": "the funds would have been invested in the most profitable of the alternatives and that the errant fiduciary bears the burden of proving that the fund would have earned less than this amount. See id. at 1056. In Donovan, we did not discuss how the fiduciary could meet this burden, other than to say that uncertainties in fixing damages will generally be resolved against the wrongdoer. See id. There may be cases in which a defendant comes forward with particularly reliable evidence that, had the funds not been improperly invested, they would have been put into a particular alternative investment. In such cases, it may be inappropriate to decide by summary judgment that the funds in question would have yielded a return equal to the average rate of the rest of the portfolio. In this case, however, the affidavits of Grace and of defendant’s expert did not assert any such particular facts. The latter contains only a general assertion that 90-day U.S. Treasury bills would have been a more appropriate alternative investment. Since the defendants did not show that, at trial, they would be able to overcome the presumption we articulated in Donovan, the District Court correctly found no issue of fact as to the method of liquidating stock to reach the 50% limit or with respect to the alternative investment vehicle. IV. Other Damage Issues A. Oak Class Action Settlement. One of the common stocks selected by Grace that lost money for the Fund was Oak Industries (“Oak”). Sometime after GCI and Grace were fired, the Fund received a payment of $233,357.54 in connection with the settlement of a class action against the directors and officers of Oak for malfeasance in office. In re Oak Industries Securities Litigation, Master File No. 83 0537-G(M) (S.D.Cal.1985). Defendants now argue that the District Court erred in failing to credit this entire sum against the amount of loss calculated by the method outlined above. In crediting only about 28% of this settlement against the loss, they argue, the District Court granted a windfall to the Fund. This argument fails because it ignores the" }, { "docid": "2154712", "title": "", "text": "non-equity holdings during the relevant time period and would have returned a comparable yield. In a second decision, Dardaganis v. Grace Capital Inc., 684 F.Supp. 1196 (S.D.N.Y.1988), the Court analyzed the expert affidavits of both sides and granted summary judgment to the plaintiffs on the issue of damages. After defendants’ motion for reargument was denied and the District Court made some minor alterations in its judgment, this appeal followed. Discussion I. Scope of Fiduciary Duty Under Section 1104(a)(1) GCI raises two principal objections to the District Court’s liability holding. First, it maintains that the Court erred in concluding, at the summary judgment stage, that GCI violated the Guidelines because there was a dispute as to whether the parties intended the 50% ceiling to be a strict limit or only a rough benchmark, as GCI maintains is the custom in the industry. Second, it argues that a fiduciary’s failure to abide by the plan documents is not necessarily a breach of duty, but that liability requires conduct that was not prudent under the circumstances. The District Court correctly rejected both of these arguments. With respect to the character of the 50% ceiling, the Agreement plainly stated that GCI would manage the account “in strict conformity with the investment guidelines promulgated by the Trustees.” We need not consider whether such language in a plan document covered by section 1104 requires a finding of liability even for small percentage deviations from a prescribed limit. In this case, GCI greatly exceeded the 50% ceiling during a 16-month period preceding its termination in October 1984. For most of this period, the portfolio’s equity holdings exceeded 65%; for the last five months these holdings exceeded 75%. In light of these undisputed facts, the District Court correctly ruled that no reasonable fact-finder could conclude that GCI had complied with the Guidelines. Nor does the defendant’s claim that the parties agreed not to regard shares of preferred stock as “equities” for purposes of the ceiling preclude summary judgment as to liability. As the District Court noted, the percentage of preferred stock in the portfolio was only 4%. Even" }, { "docid": "2154725", "title": "", "text": "decisions. Under this method, the trial judge would have to determine which purchase or refusal to sell caused the portfolio to exceed the 50% limit. This would give GCI an opportunity to show that the decisions that resulted in excess equity generally were associated with successful stocks. Hence, absent the breach, the portfolio would have contained a greater percentage of less successful stocks and would not have performed as well as the District Court presumed, using its averaging technique. Although Donovan did not encounter this precise contention, the District Court correctly interpreted that decision not to require inquiries into specific investment decisions. Where, as in this case, the breach arises from a pattern of investment rather than from investment in a particular stock, courts will rarely be able to determine, with any degree of certainty, which stock the investment manager would have sold or declined to buy had he complied with investment guidelines. Drawing upon the common law of trusts in Donovan, we said that the District Court should presume that, but for the breach, the funds would have been invested in the most profitable of the alternatives and that the errant fiduciary bears the burden of proving that the fund would have earned less than this amount. See id. at 1056. In Donovan, we did not discuss how the fiduciary could meet this burden, other than to say that uncertainties in fixing damages will generally be resolved against the wrongdoer. See id. There may be cases in which a defendant comes forward with particularly reliable evidence that, had the funds not been improperly invested, they would have been put into a particular alternative investment. In such cases, it may be inappropriate to decide by summary judgment that the funds in question would have yielded a return equal to the average rate of the rest of the portfolio. In this case, however, the affidavits of Grace and of defendant’s expert did not assert any such particular facts. The latter contains only a general assertion that 90-day U.S. Treasury bills would have been a more appropriate alternative investment. Since the defendants" }, { "docid": "12528613", "title": "", "text": "OPINION SWEET, District Judge. Plaintiff Trustees (“Trustees”) of the Retirement Fund of the Fur Manufacturing Industry (the “Fund”) have moved pursuant to Fed.R.Civ.P. 56 for an order granting summary judgment against defendants Grace Capital, Inc. (“Grace Capital”) and H. David Grace (collectively, “Grace”) on the issue of damages resulting from Grace’s breach of his fiduciary duty as investment manager to the Fund. Upon the findings and conclusions set forth below, the motion is granted. By the opinion dated June 26, 1987 (the “June 26 Opinion”), familiarity with which is assumed, partial summary judgment was granted in favor of the Trustees on the issue of Grace’s liability for breach of its fiduciary duty to the Fund under Section 404(a)(1)(D) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1104 (1985). The June 26 Opinion held that Grace Capital and Grace personally were jointly and severally liable to the Fund for all damages resulting from their violation of the Investment Management Agreement’s ceiling on equity investments for the Fund. As to the issue of damages, however, the Trustees’ proposed measure of damages was rejected, and the opinion gave instructions concerning the proper measure of damages following the Second Circuit’s opinion in Donovan v. Bierwirth, 754 F.2d 1049 (2d Cir.1985). The Trustees retained an expert witness, actuary Nancy R. Wagner (“Wagner”), who has calculated the measure of damages and described her calculations in affidavits submitted with the instant motion as described below. The Wagner Affidavits The June 26 Opinion found that Grace first breached his fiduciary duty not to hold more than 50% of the Fund’s assets in equity securities on June 30,1983. Accordingly, using portfolio reports prepared by Grace, Wagner calculated the loss to the Fund from June 30, 1983 through October 31, 1984, the date on which the Trustees effectively terminated Grace as investment manager and began to liquidate the portfolio. Wagner found that for the pertinent period after June 30, 1983, defendants on average held 69.23% of the Fund’s portfolio in equities. Thus, 19.23% of the portfolio was held in excess equities. To determine the portion of all" }, { "docid": "12528623", "title": "", "text": "they would have held but for Grace’s breach of fiduciary duty, interest must be awarded through the date of judgment. Absent Grace’s breach of duty, the Fund would have had the money lost on the excess equity investments and would have invested it with the rest of its assets. In this respect, the lost earnings are not so much “prejudgment interest” in the classic common law sense as a necessary element of the make-whole remedy under 29 U.S.C. § 1109. Grace’s contention that prejudgment interest for the period prior to his termination should be awarded only at the prevailing 90-day Treasury Bill rate is inconsistent with ERISA and directly contradicts the June 26 Opinion which stated that “it is appropriate to calculate damages by taking the amount of money improperly invested in stocks during the period from June 30, 1983 on, that is, the amount represented by the excesses of 4% to 29% (or more), and multiplying it by the return made on the bonds during that same period, with any appropriate adjustments.” June 26 Opinion at 14. Wagner’s calculation accords with this instruction, and Grace does not challenge the accuracy of her computation. Grace also contends that, for the period after his termination in October 1984, interest should be awarded only at the simple “legal” rate of 9%. However, as quoted above, the June 26 Opinion directs that interest measured by the Fund’s actual earnings is appropriate “from June 30, 1983 on.” No cut-off date is suggested. Moreover, the date of Grace’s termination has no significance in relation to damages in this case. Grace’s breach of fiduciary duty, and the accumulation of the Fund’s losses, began on June 30, 1983. Grace’s termination in October 1984 merely triggered the liquidation of the portfolio he held, thus necessitating a shift to a different index to measure the Fund’s earnings. Wagner has appropriately presumed, in keeping with the June 26 Opinion, that Grace’s accumulated “misinvestments” would, upon his termination, have been transferred to the Fund’s new investment managers. Because the Fund’s actual rate of earnings could not be calculated cost-effectively for one" } ]

[ { "docid": "16852805", "title": "", "text": "relevant evidence in order to resolve the factual dispute.”). If the court finds that it lacks subject matter jurisdiction, then it must dismiss the claim. Matthews, 72 Fed.Cl. at 278; see also RCFC 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”). The court “must assume all well-pled factual allegations are true and indulge in all reasonable inferences in favor of the nonmov-ant.” United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed.Cir.2006) (citations & quotation marks omitted); accord Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed.Cir.2001). Courts “generally consider only the allegations contained in the complaint, exhibits attached to the complaint[,] and matters of public record” when deciding a motion to dismiss. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). C. The Tucker Act The Court of Federal Claims is a court of limited jurisdiction. Jentoft v. United States, 450 F.3d 1342, 1349 (Fed.Cir.2006) (citing United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)). The scope of this court's jurisdiction to entertain claims and grant relief depends upon the extent to which the United States has waived its sovereign immunity. King, 395 U.S. at 4, 89 S.Ct. 1501. In “construing a statute waiving the sovereign immunity of the United States, great care must be taken not to expand liability beyond that which was explicitly consented to by Congress.” Fid. Constr. Co. v. United States, 700 F.2d 1379, 1387 (Fed.Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 103 (1983). A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” King, 395 U.S. at 4, 89 S.Ct. 1501. Unless Congress consents to a cause of action against the United States, “there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States.” United States v. Sherwood, 312 U.S. 584, 587-88, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The Tucker Act" } ]

[ { "docid": "1315723", "title": "", "text": "cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consolidated Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might prevail, the motion must be denied.’ ”); RCS Enters., Inc. v. United States, 46 Fed.Cl. 509, 513 (2000). Pursuant to Rule 8(a)(1) of the Rules of the Court of Federal Claims (RCFC) and Rule 8(a)(1) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends.” RCFC 8(a)(1). However, “[d]e-termination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.), reh’g denied (1997) (citing Franchise Tax Bd. v. Constr., Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). “[C]onelusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); see also Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed.Cir.1998) (“Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.”). When deciding a motion to dismiss based on lack of subject matter jurisdiction, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the" }, { "docid": "14868596", "title": "", "text": "reh’g denied (2004); see also Murphy v. United States, 993 F.2d 871, 873 (Fed.Cir.1993), cert. denied, 511 U.S. 1019, 114 S.Ct. 1402, 128 L.Ed.2d 75, reh’g denied, 511 U.S. 1118, 114 S.Ct. 2123, 128 L.Ed.2d 681 (1994). RCFC 52.1 provides for judgment upon the administrative record. In disability retirement claims, the United States Court of Federal Claims “has no jurisdiction over disability retirement claims until a military board evaluates a service member’s entitlement to such retirement in the first instance.” Chambers v. United States, 417 F.3d at 1225. This court then reviews the correction board’s decision to determine whether the board’s determination was “arbitrary, or capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced, and money is due.” Sanders v. United States, 219 Ct.Cl. 285, 298, 594 F.2d 804, 811 (1979); see also Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Porter v. United States, 163 F.3d 1304, 1316 (Fed.Cir.1998), reh’g denied, en banc suggestion declined, cert. denied, 528 U.S. 809, 120 S.Ct. 41, 145 L.Ed.2d 37 (1999); Skinner v. United States, 219 Ct.Cl. 322, 332, 594 F.2d 824, 830 (1979). This standard of review “does not require a reweighing of the evidence, but a determination whether the conclusion being reviewed is supported by substantial evidence.” Heisig v. United States, 719 F.2d 1153, 1157 (Fed.Cir.1983) (emphasis in original). The plaintiffs burden of proof also has been described as a “showing by cogent and clearly convincing evidence.” Fisher v. United States, 402 F.3d at 1180; see also Colon v. United States, 71 Fed.Cl. 473, 485-86 (2006); Garcia v. United States, 40 Fed.Cl. 247, 254 (1998), aff'd sub nom. Acevedo v. United States, 216 Fed.Appx. 977 (Fed.Cir.2007). The United States Court of Federal Claims does not sit as a “super correction board.” Skinner v. United States, 219 Ct.Cl. 322, 331, 594 F.2d 824, 830 (1979). “ “When substantial evidence supports a board’s action, and when that action is reasonable in light of all the evidence" }, { "docid": "21233597", "title": "", "text": "F.3d 1366, 1370 (Fed.Cir.1998); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d 1166, 1167 (Fed.Cir.1995) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); Ho v. United States, 49 Fed.Cl. 96, 100 (2001), aff'd, 30 Fed.Appx. 964 (Fed.Cir.2002); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995). The court acknowledges that the plaintiff is proceeding pro- se. Normally, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”), reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); see also Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh’g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977). The United States Court of Appeals for the Federal Circuit has similarly stated that “the pleadings of pro se litigants should be held to a lesser standard than those drafted by lawyers when determining whether the complaint should be dismissed for failure to state a claim because ‘[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims.’” Forshey v. Principi, 284 F.3d 1335, 1357 (Fed.Cir.2002) (quoting Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)), cert. denied, 537 U.S. 823, 123 S.Ct. 110, 154 L.Ed.2d 33 (2002). However, “there is no ‘duty [on the part] of the trial court ... to create a claim which appellant has not spelled out in his pleading____’” Scogin v. United States, 33 Fed.Cl. 285, 293 (1995) (quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975)) (alterations in original); see also" }, { "docid": "21233606", "title": "", "text": "expressly excludes tort claims from the jurisdiction of the United States Court of Federal Claims. 28 U.S.C. § 1491(a)(1) (2000); see Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Alves v. United States, 133 F.3d 1454, 1459 (Fed.Cir. 1998); Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.), reh’g denied (1997); Golden Pacific Bancorp, v. United States, 15 F.3d 1066, 1070 n. 8 (Fed.Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 420, 130 L.Ed.2d 335 (1994); Agee v. United States, 72 Fed.Cl. 284, 290 (2006); Zhengxing v. United States, 71 Fed.Cl. 732, 739, aff'd, 204 Fed.Appx. 885 (Fed.Cir.), reh’g denied (2006). In reviewing the jurisdiction of this court, the United States Court of Appeals for the Federal Circuit has stated: It is well settled that the United States Court of Federal Claims lacks — and its predecessor the United States Claims Court lacked — jurisdiction to entertain tort claims. The Tucker Act expressly provides that the “United States Court of Federal Claims shall have jurisdiction ... in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (1988) (emphasis added), as amended by Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 902(a), 106 Stat. 4506; see Aetna Casualty and Surety Co. v. United States, 655 F.2d 1047, 1059, 228 Ct.Cl. 146 (1981). Shearin v. United States, 992 F.2d 1195, 1197 (Fed.Cir.1993). Accordingly, on this independent ground, also, the court must dismiss plaintiff’s complaint as not within the jurisdiction of this court. CONCLUSION For the foregoing reasons, plaintiffs complaint is DISMISSED, with prejudice, for lack of subject matter jurisdiction. The clerk’s office shall enter JUDGMENT consistent with this order. IT IS SO ORDERED." }, { "docid": "16122439", "title": "", "text": "a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v.Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; see also Centr. Pines Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed.Cir.2012) (“An objection to a court’s subject matter jurisdiction can be raised by any party or the court at any stage of litigation, including after trial and the entry of judgment.”); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed.Cir.2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 865 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998))); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed.Cir.2011). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied (Fed.Cir.1997); see also SRA Int’l, Inc. v. United States, 114 Fed.Cl. 247, 251 (2014); Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.Cl. 710, 713 (2010). “Con-clusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed.Cir.1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed.Cir.2007) (Dyk, J., concurring in part, dissenting in part). In examining what must be pled in order to state a claim, under both RCFC" }, { "docid": "21233605", "title": "", "text": "and obviously a controversy between private parties could not be entertained.”); Sindram v. United States, 67 Fed.Cl. 788, 794 (2005) (noting that the jurisdiction of the United States Court of Federal Claims is confined to cases against the United States); Kennedy v. United States, 19 Cl.Ct. 69, 75 (1989) (“If the relief sought is other than a money judgment against the United States, the suit must be dismissed; and if the relief sought is against others than the United States, the suit as to them must be ignored as beyond the jurisdiction of the Court.”). Therefore, to the extent that the plaintiff is bringing a claim against a defendant other than the United States, or an employee of the United States, as appears to be the case in the complaint brought by plaintiff to this court, the complaint must be dismissed pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction. Additionally, the court notes that plaintiffs claim also appears to be jurisdietionally defective because plaintiffs claim of misconduct sounds in tort. The Tucker Act expressly excludes tort claims from the jurisdiction of the United States Court of Federal Claims. 28 U.S.C. § 1491(a)(1) (2000); see Keene Corp. v. United States, 508 U.S. 200, 214, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993); Alves v. United States, 133 F.3d 1454, 1459 (Fed.Cir. 1998); Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.), reh’g denied (1997); Golden Pacific Bancorp, v. United States, 15 F.3d 1066, 1070 n. 8 (Fed.Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 420, 130 L.Ed.2d 335 (1994); Agee v. United States, 72 Fed.Cl. 284, 290 (2006); Zhengxing v. United States, 71 Fed.Cl. 732, 739, aff'd, 204 Fed.Appx. 885 (Fed.Cir.), reh’g denied (2006). In reviewing the jurisdiction of this court, the United States Court of Appeals for the Federal Circuit has stated: It is well settled that the United States Court of Federal Claims lacks — and its predecessor the United States Claims Court lacked — jurisdiction to entertain tort claims. The Tucker Act expressly provides that the “United States Court of Federal Claims shall have jurisdiction ... in" }, { "docid": "8045007", "title": "", "text": "County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied sub nom. Penn Triple S v. United States, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.), reh’g and reh’g en banc denied (2002), cert. denied, 538 U.S. 978, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.), reh’g en banc denied (2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consol. Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consol. Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, and reh’g en banc declined (1997); Highland Falls-Fort Montgomery Cent. School Dish v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (‘When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might prevail, the motion must be denied.’ ”); RCS Enters., Inc. v. United States, 46 Fed.Cl. 509, 513 (2000). Pursuant to RCFC 8(a)(1) and Rule 8(a)(1) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends.” RCFC 8(a)(1). However, “[djetermination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff’s claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.), reh’g denied (1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). Nevertheless, “conelusory" }, { "docid": "330264", "title": "", "text": "United States, 200 F.3d 1369, 1372 (Fed.Cir.2000); New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); Gould, Inc. v. United States, 67 F.3d 925, 929-30 (Fed.Cir.1995); Highland Falls-Fort Montgomery Cent. School Dish v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might prevail, the motion [to dismiss] must be denied.’ ”); RCS Enterps., Inc. v. United States, 46 Fed.Cl. 509, 513 (2000). When deciding on a motion to dismiss based on failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the nonmovant’s favor. See Conley v. Gibson, 355 U.S. at 45-6, 78 S.Ct. 99; Boyle v. United States, 200 F.3d at 1372; Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d at 1167 (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)); Hamlet v. United States, 873 F.2d at 1416; Ho v. U.S., 49 Fed.Cl. 96, 100 (2001), aff'd, 30 Fed.Appx. 964 (2002); Alaska v. United States, 32 Fed.Cl. at 695. If a defendant or the court challenges jurisdiction or plaintiffs’ claim for relief, however, the plaintiffs cannot rely merely on allegations in the complaint, but must instead bring forth relevant, competent proof to establish jurisdiction. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); see also Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404-05 (1994). “A" }, { "docid": "16122440", "title": "", "text": "(Fed.Cir.1998))); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed, 425 Fed.Appx. 902 (Fed.Cir.2011). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied (Fed.Cir.1997); see also SRA Int’l, Inc. v. United States, 114 Fed.Cl. 247, 251 (2014); Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed.Cl. 710, 713 (2010). “Con-clusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed.Cir.1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n.9 (Fed.Cir.2007) (Dyk, J., concurring in part, dissenting in part). In examining what must be pled in order to state a claim, under both RCFC 8(a)(2) and Rule (8)(a)(2) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” RCFC 8(a)(2); Fed.R.Civ.P. 8(a)(2) (2014); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The United States Supreme Court, in the Twombly case, stated that: While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the “grounds” of his “entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Papasan v. Allain, 478 U.S. 265, 286 [106 S.Ct. 2932, 92 L.Ed.2d 209] (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A." }, { "docid": "16122446", "title": "", "text": "or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), recognized by Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed.Cir.2006); Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed.Cir.2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003). Defendant in its motion to dismiss contends that “there is no privity of contract between the government and Threshold.” Contract claims against the United States are governed by the Tucker Act, which grants jurisdiction to this court 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, or for liquidated or unliquidated damages in eases not sounding in tort. 28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nat., 556 U.S. 287, 289-90, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009); United States v. Mitchell, 463 U.S. 206, 215, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also Kam-Almaz v. United States, 682 F.3d at 1368; Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2007), cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008);" }, { "docid": "8856458", "title": "", "text": "921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.2002), cert. denied, 538 U.S. 978, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consolidated Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989), cert. denied, 517 U.S. 1155, 116 S.Ct. 1542, 134 L.Ed.2d 646 (1996); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might prevail, the motion must be denied.’ ”); RCS Enters., Inc. v. United States, 46 Fed.Cl. 509, 513 (2000). Pursuant to Rule 8(a)(1) of the RCFC and Rule 8(a)(1) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends.” RCFC 8(a)(1). However, “[d]e-termination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.), reh’g denied (1997) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 468 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). “[C]onclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), cert. denied sub nom. Talley v. Crosson, 460 U.S. 1037, 103 S.Ct. 1426, 75 L.Ed.2d 787 (1983); see also" }, { "docid": "19045387", "title": "", "text": "always look to their jurisdiction, whether the parties raise the issue or not.”). “The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; see also Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed.Cir.2008) (“[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 506, 126 S.Ct. 1235; Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. denied, 545 U.S. 1127, 125 S.Ct. 2935, 162 L.Ed.2d 865 (2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed.Cir.1998))); Pikulin v. United States, 97 Fed.Cl. 71, 76, appeal dismissed (Fed.Cir.2011). In fact, “[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where, as here, neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.Cir.2004) (citing Textile Prods., Inc., v. Mead Corp., 134 F.3d 1481, 1485 (Fed.Cir.), reh’g and en banc suggestion denied (Fed.Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006). Pursuant to the Rules of this court and Rule 8(a) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(1), (2) of the Rules of the United States Court of Federal Claims (RCFC) (2011); Fed.R.Civ.P. 8(a)(1), (2) (2011); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S." }, { "docid": "19045391", "title": "", "text": "419 F.3d 1355, 1364 (Fed.Cir.2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003). The Tucker Act grants jurisdiction to this court 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, or for liquidated or unliquidated damages in eases not sounding in tort. 28 U.S.C. § 1491(a)(1) (2006). As interpreted by the United States Supreme Court, the Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United States (1) founded on an express or implied contract with the United States, (2) seeking a refund from a prior payment made to the government, or (3) based on federal constitutional, statutory, or regulatory law mandating compensation by the federal government for damages sustained. See United States v. Navajo Nation, 556 U.S. 287,-, 129 S.Ct. 1547, 1551, 173 L.Ed.2d 429 (2009); United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); see also Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2007), cert. denied, 552 U.S. 1142, 128 S.Ct. 1082, 169 L.Ed.2d 810 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed.Cir.1999). “Not every elaim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States____” United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003); Radioshack Corp. v. United States, 566 F.3d 1358, 1360 (Fed.Cir.2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d at 1343 (“[P]laintiff must ... identify a substantive source of law that creates the right to recovery" }, { "docid": "8045006", "title": "", "text": "918 F.2d 160, 161 (Fed.Cir.1990)); see also View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir.1997) (“[Cjourts must always look to their jurisdiction, whether the parties raise the issue or not.”). A plaintiff must establish jurisdiction by a preponderance of the evidence. See Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Thomas v. United States, 56 Fed.Cl. 112, 115 (2003); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. 673, 675 (2001), aff'd, 292 F.3d 1383 (Fed.Cir. 2002); Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [the plaintiff] can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied sub nom. Penn Triple S v. United States, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.), reh’g and reh’g en banc denied (2002), cert. denied, 538 U.S. 978, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.), reh’g en banc denied (2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consol. Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consol. Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, and reh’g en banc declined (1997); Highland Falls-Fort Montgomery Cent. School Dish v. United States, 48" }, { "docid": "1315724", "title": "", "text": "“a short and plain statement of the grounds upon which the court’s jurisdiction depends.” RCFC 8(a)(1). However, “[d]e-termination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.), reh’g denied (1997) (citing Franchise Tax Bd. v. Constr., Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). “[C]onelusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); see also Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed.Cir.1998) (“Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.”). When deciding a motion to dismiss based on lack of subject matter jurisdiction, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the nonmovant’s favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. 99; Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.2002), cert. denied, — U.S. —, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003); Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed.Cir.2002); Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1338 (Fed.Cir.2001) (quoting New Valley Corp. v. United States, 119 F.3d at 1580), cert. denied, 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 (2002); Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000); Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d at 1167 (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995); Hamlet v. United States, 873 F.2d at 1416; Ho v. United States, 49 Fed.Cl. 96, 100 (2001), aff'd, 30 Fed.Appx. 964 (Fed.Cir.2002); Alaska v. United States, 32 Fed.Cl." }, { "docid": "1546108", "title": "", "text": "Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998); Trauma Serv. Group v. United States, 104 F.3d 1321, 1324 (Fed.Cir.1997); Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991); Bowen v. United States, 49 Fed.Cl. 673, 675 (2001) (noting that the plaintiff bears the burden of proof on a motion to dismiss for lack of jurisdiction), aff’d, 292 F.3d 1383 (Fed.Cir. 2002); Schweiger Constr. Co. v. United States, 49 Fed.Cl. 188, 205 (2001); Catellus Dev. Corp. v. United States, 31 Fed.Cl. 399, 404 (1994). A plaintiff must establish jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. at 675; Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.), reh’g and reh’g en banc denied (2002), petition for cert. filed, 71 U.S.L.W. 3505, 123 S.Ct. 1786, 155 L.Ed.2d 666 (U.S. April 21, 2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consolidated Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48" }, { "docid": "16122445", "title": "", "text": "v. United States, 93 Fed.Cl. 720, 726-27 (2010), appeal dismissed, 454 Fed.Appx. 900 (2011); Legal Aid Soc’y of New York v. United States, 92 Fed.Cl. 285, 292, 298, 298 n.14 (2010). When deciding a case based on a lack of subject matter jurisdiction or for failure to state a claim, this court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (“In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955 (citing Swierkiewicz v. Sorema N.A., 534 U.S. at 508 n.1, 122 S.Ct. 992))); Scheuer v. Rhodes, 416 U.S. at 236, 94 S.Ct. 1683 (“Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.”), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), recognized by Davis v. Scherer, 468 U.S. 183, 190, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed.Cir.2006); Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed.Cir.2005); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2002), cert. denied, 538 U.S. 906, 123 S.Ct. 1484, 155 L.Ed.2d 226 (2003). Defendant in its motion to dismiss contends that “there is no privity of contract between the government and Threshold.” Contract claims against the United States are governed by the Tucker Act, which grants jurisdiction to this court 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" }, { "docid": "8856457", "title": "", "text": "of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Thomas v. United States, 56 Fed.Cl. 112,115 (2003); Martinez v. United States, 48 Fed.Cl. 851, 857 (2001), aff'd in part, 281 F.3d 1376 (Fed.Cir.), reh’g denied (2002); Bowen v. United States, 49 Fed.Cl. at 675; Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed.Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 148 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied sub nom. Penn Triple S v. United States, 538 U.S. 921, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.2002), cert. denied, 538 U.S. 978, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consolidated Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989), cert. denied, 517 U.S. 1155, 116 S.Ct. 1542, 134 L.Ed.2d 646 (1996); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might" }, { "docid": "1315722", "title": "", "text": "v. United States, 49 Fed.Cl. at 675; Vanalco, Inc. v. United States, 48 Fed.Cl. 68, 73 (2000); Alaska v. United States, 32 Fed.Cl. 689, 695 (1995), appeal dismissed, 86 F.3d 1178 (Fed. Cir.1996) (table). When construing the pleadings pursuant to a motion to dismiss, the court should grant the motion only if “it appears beyond doubt that [plaintiff] can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (quoting Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Brubaker Amusement Co., Inc. v. United States, 304 F.3d 1349, 1355 (Fed.Cir.2002), cert. denied, Penn Triple S v. United States, — U.S. —, 123 S.Ct. 1570, 155 L.Ed.2d 311 (2003); Leider v. United States, 301 F.3d 1290, 1295 (Fed.Cir.2002), reh’g and reh’g en banc denied (2002), cert. denied, — U.S. —, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003); Conti v. United States, 291 F.3d 1334, 1338 (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d 785 (2003); Consolidated Edison Co. v. O’Leary, 117 F.3d 538, 542 (Fed.Cir.1997), cert. denied sub nom. Consolidated Edison Co. v. Pena, 522 U.S. 1108, 118 S.Ct. 1036, 140 L.Ed.2d 103 (1998); see also New Valley Corp. v. United States, 119 F.3d 1576, 1579 (Fed.Cir.), reh’g denied, en banc suggestion declined (1997); Highland Falls-Fort Montgomery Cent. School Dist. v. United States, 48 F.3d 1166, 1169 (Fed.Cir.), cert. denied, 516 U.S. 820, 116 S.Ct. 80, 133 L.Ed.2d 38 (1995); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed.Cir.1989); W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (“When the facts alleged in the complaint reveal ‘any possible basis on which the nonmovant might prevail, the motion must be denied.’ ”); RCS Enters., Inc. v. United States, 46 Fed.Cl. 509, 513 (2000). Pursuant to Rule 8(a)(1) of the Rules of the Court of Federal Claims (RCFC) and Rule 8(a)(1) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint" }, { "docid": "19045388", "title": "", "text": "even where, as here, neither party has raised this issue.” Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed.Cir.2004) (citing Textile Prods., Inc., v. Mead Corp., 134 F.3d 1481, 1485 (Fed.Cir.), reh’g and en banc suggestion denied (Fed.Cir.), cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 58 (1998)), reh’g and reh’g en banc denied (Fed.Cir.2004), cert. dismissed as improvidently granted, 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006). Pursuant to the Rules of this court and Rule 8(a) of the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint “a short and plain statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(1), (2) of the Rules of the United States Court of Federal Claims (RCFC) (2011); Fed.R.Civ.P. 8(a)(1), (2) (2011); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)), reh’g denied (Fed.Cir.1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710, 713 (2010). “Conclusory allegations of law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed.Cir.1998); see also McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1363 n. 9 (Fed.Cir.2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)). As stated in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or" } ]

[ { "docid": "22613908", "title": "", "text": "and the plaintiffs, were denied by the trial court. The Ohio Supreme Court reversed, holding that the controversy with Armour was separable and that its removal petitions should have been granted. The trial court complied, and the cases were removed; but a motion to remand was then granted in the Federal District Court on the ground that in its view there was no separable controversy and hence no federal jurisdiction. The Court of Appeals for the Sixth Circuit granted Armour’s mandamus petition, holding that the District Court had no power to determine the separable-controversy issue because that question had been finally determined by the Ohio Supreme Court. The Court of Appeals deemed inapplicable the prohibition against review by appeal or mandamus where the action of the District Court flouted not only the doctrine of res judicata but also the statutes directing courts to give full faith and credit to the decisions of state tribunals. The view of the Court of Appeals was that the prohibition against review contained in § 71 barred review of erroneous decisions but not of those beyond the power of the District Court. In reversing, this Court could not agree with “[t]he suggestion that the federal district court had no power to consider the entire record and pass upon the question of separability, because this point had been finally settled by the Supreme Court of Ohio.” 311 U. S„ at 204. Although the Ohio Supreme Court had held that the state trial court should have relinquished jurisdiction, the federal court was required by the controlling statute to consider its own jurisdiction, which it had proceeded to do in determining that “the controversy was not within the jurisdiction of that court” and that the case should be remanded. The remand order was thus deemed by this Court to be strictly within the power conferred upon the District Court by the statute, inasmuch as it was based on a determination of jurisdiction over the case. Mandamus was therefore barred by § 71. It is apparent that Kloeb does not control this case. Kloeb did not hold that mandamus" } ]

[ { "docid": "17612589", "title": "", "text": "prevent judicial usurpation of power. Surely this does not mean that a Court in a mandamus proceeding can remedy only egregious jurisdictional violations while overlooking more mundane usurpations of power. Even in emphasizing the extraordinary nature of mandamus, the Supreme Court in Kerr v. United States District Court, - U.S. -, -, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976), noted that mandamus was to be “ ‘used to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so’ ” [citations omitted]. The Court also noted that “we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of ‘jurisdiction’.” Although the power of a court to transfer a case under § 1404(a) hinges upon venue statutes, we do not consider the problem to be one of venue, but rather one of jurisdiction of the transferee court to hear the transferred case. As stated in Blaski: “The transferee courts could have acquired jurisdiction over these actions only if properly brought in those courts, or if validly transferred thereto under § 1404(a).” (363 U.S. at 343, 80 S.Ct. at 1089.) The Seventh Circuit was required, in ruling on the mandamus petition, to consider whether the transferor court usurped its power and whether the transferee court could properly acquire jurisdiction. . See also the recent decision of the Supreme Court in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), wherein the Court held that mandamus was the proper method of attacking a remand order of a case removed from a state court by a District Court for reasons not authorized by the removal statutes. . The question whether the Fifth Circuit’s order denying a motion for leave to file a petition for writ of mandamus was a binding determination of the transferee court’s jurisdiction was not at issue in that case: “No claim is made here that the order of the Fifth Circuit denying the motion of" }, { "docid": "17612570", "title": "", "text": "relief after reviewing the petition, tnfe memorandum in support thereof, the supplemental appendix and the joint answer\\of the respondents. further contention of Skil is that the Seventh Circuit’s denial of a writ of mandamus and prohibition is not binding on this Court because the standard of review in a mandamus action differs from the standard of review in an interlocutory appeal. This distinction does not change the result in this case. Skil argued in the Seventh Circuit that Judge Hoffman lacked power to transfer the case because of Blaski. Had Skil been correct, the Seventh Circuit would have been required to issue the writ. By denying the writ, the Seventh Circuit must necessarily have decided that Judge Hoffman had power to transfer the case because the District Court in Ohio could properly exercise jurisdiction over the action. The standard for testing jurisdiction does not differ in a mandamus action from the standard used in an appeal. The Seventh Circuit would not have refused to issue the writ had Judge Hoffman lacked power to transfer the case. We should never assume that a court of concurrent jurisdiction neglected to perform its duty, particularly when its order clearly shows full performance. Mandamus is the proper remedy when a transfer has been ordered in violation of the legal limitations of § 1404(a). Van Dusen v. Barrack, 376 U.S. 612, 615 n. 3, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Johnson & Johnson v. Picard, 282 F.2d 386 (6th Cir. 1960). Finally, Skil contends that this Court cannot consider the Seventh Circuit’s order as res judicata because to do so would conflict with some curious dictum found in Blaski, 363 U.S. at 340 n. 9, 80 S.Ct. 1084. The Court listed three reasons why the Fifth Circuit’s order was not res judicata: 1. The Fifth Circuit’s order was interlocutory; 2. Not on the merits; and 3. entered in the same case as the Seventh Circuit’s decision in Blaski. While it would be improper for us to question the applicability of those reasons to the facts in Blaski, we must conclude that those reasons are" }, { "docid": "17612588", "title": "", "text": "was initiated prior to the transfered case, reten tion of this case seems the proper course. Pursuant to Rule 42(a), this case is consolidated with Case No. C 74-121 for all pretrial proceedings. IT IS SO ORDERED. /s/ THOMAS D. LAMBROS Thomas D. Lambros United States District Judge DATED: 4/15/75 . Lucerne Products, Inc. v. Skil Corp., 441 F.2d 1127 (6th Cir. 1971); Skil Corp. v. Lucerne Products, Inc., No. 72-1282; Skil Corp. v. Lucerne Products, Inc., No. 73-1738. . Skil first represented to this Court that the plaintiff in Blaski filed a petition for writ of mandamus in the Fifth Circuit, which denied the petition (Skil brief at 20). According to the facts as stated by the Supreme Court (363 U.S. at 337, 80 S.Ct. 1084) no such petition was filed because leave to file was denied. Skil belatedly recognized this distinction in its reply brief (at page 5, note 4), but argued that the distinction is immaterial. . The dissent asserts that mandamus is an extraordinary remedy used only in drastic situations to prevent judicial usurpation of power. Surely this does not mean that a Court in a mandamus proceeding can remedy only egregious jurisdictional violations while overlooking more mundane usurpations of power. Even in emphasizing the extraordinary nature of mandamus, the Supreme Court in Kerr v. United States District Court, - U.S. -, -, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976), noted that mandamus was to be “ ‘used to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so’ ” [citations omitted]. The Court also noted that “we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of ‘jurisdiction’.” Although the power of a court to transfer a case under § 1404(a) hinges upon venue statutes, we do not consider the problem to be one of venue, but rather one of jurisdiction of the transferee court to hear the transferred case. As stated in Blaski: “The transferee" }, { "docid": "6122059", "title": "", "text": "trial. In the meantime, defendants submitted a motion requesting transfer of the action to the Illinois District, under Title 28 U.S.C.A. § 1404(a), stating in their motion that defendants waived lack of venue in the Illinois District. Over objection of plaintiffs (petitioners here), the Texas Court directed that, for the convenience of the parties and witnesses and in the interest of justice, the action be transferred to the Illinois District. Plaintiffs, after denial of their motion to vacate the order of transfer, filed a petition for writ of mandamus in the United States Court of Appeals for the Fifth Circuit, requesting that Court to issue an order to show cause why a writ of mandamus should not be issued against the Texas District Judge, nullifying the transfer order. The Court of Appeals (5 Cir.) held that the District Court was empowered by statute to make the transfer, and denied leave to file the petition. Ex parte Blaski, 245 F.2d 737. The papers and records in the Texas District infringement action were received in the Clerk’s Office of the Illinois District pursuant to the transfer order. Thereupon, petitioners filed a motion in the Illinois District for an order directing the transfer of and remandment of the action to the Texas District, on the ground that the Texas Court was without power to order the transfer and, consequently, the Illinois Court did not acquire jurisdiction. A hearing on the petition and response thereto was had before Honorable Julius J. Hoffman, a Judge of the Illinois District and respondent in the instant proceeding. Respondent, on March 14, 1958, entered an order denying petitioners’ motion, and in an oral opinion stated his reasons therefor. Thereupon, petitioners filed in this Court the petition now before us for a writ of mandamus directing respondent to order such transfer and remand. No question is raised, in fact all parties concede that under Sec. 1651(a), Title 28 U.S.C.A., mandamus is an appropriate means for testing the legality of the order in controversy. Furthermore, our jurisdiction, if there be any doubt, is supported by the decision of this Court" }, { "docid": "18900377", "title": "", "text": "Ninth Circuit that Curtiss-Wright was not amenable to process in Mississippi, that the transferee court in Mississippi therefore lacked jurisdiction over Curtiss-Wright, and that this Court did not qualify as a transferee forum. McDonnell Douglas contends that in denying plaintiff’s Petition with a one-line Order, the Ninth Circuit adjudicated that the transfer was proper and that this Court has jurisdiction of all parties before it in the transferred action, regardless of whether it would have been possible to obtain valid service of process on CurtissWright in this Court. We think that this argument has been rejected in Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). Blaski brought a patent infringement action in the United States District Court for the Northern District of Texas against certain defendants who were residents of, and maintained their only place of business in that District. After being served with process and answering, the defendants moved under 28 U.S.C. § 1404(a) to transfer the action to the United States District Court for the Northern District of Illinois. Despite Blaski’s objections that, since the defendants could not have been served with process in Illinois, the transferee court was not a forum in which the action could have, been brought, the Texas court transferred the case to the Northern District of Illinois. Thereupon, Blaski moved in the Fifth Circuit for leave to file a Petition for a Writ of Mandamus directing the vacation of that Order, but the Motion was denied. Ex parte Blaski, 245 F.2d 737 (5th Cir.), cert. denied, 355 U.S. 872, 78 S.Ct. 122, 2 L.Ed.2d 76 (1957). Blaski promptly thereafter moved in the Illinois court for an Order remanding the action to the Texas court. When this Motion was denied, Blaski petitioned the Seventh Circuit for a Writ of Mandamus to compel the Illinois district court to reverse its Order. The Seventh Circuit granted this Petition, Blaski v. Hoffman, 260 F.2d 317 (7th Cir. 1958), and the Supreme Court granted certiorari. The Supreme Court rejected the argument that the Fifth Circuit’s denial of the Petition for a Writ of" }, { "docid": "22891594", "title": "", "text": "venue, or personal jurisdiction. Therefore, as the Supreme Court stated in footnote 9, the Fifth Circuit’s order “did not purport to determine the jurisdiction of the transferee court.” 363 U.S. at 340 n.9, 80 S.Ct. at 1088 n.9. In the instant case, however, the District of Columbia district court recognized the central holding of Blaski—a suit can only be transferred to a district in which the plaintiff had a right to bring the action originally. Unlike in Blaski, where the transferor court and its appellate court did not consider whether the plaintiff had a right to sue originally in the transferee court, Judge Richey did consider this issue and found that venue and personal jurisdiction were proper in New Jersey. We conclude that Blaski should be interpreted in the context of its own facts and should be read to allow a determination of venue and jurisdiction by the transferee court only when this determination has not previously been made by the transferor court. Therefore, the conclusion in footnote 9 of Blaski that the transferee court may determine its own jurisdiction does not apply to this case, and the usual law of the case doctrine should apply instead. Justice Frankfurter’s dissent in Blaski, joined in by Justices Harlan and Brennan, provides support for our interpretation of that case. Justice Frankfurter would have reversed the Seventh Circuit’s grant of the petition for a writ of mandamus because he disapproved of the Seventh Circuit’s re-examination of an issue previously decided by the Fifth Circuit. Unlike the majority’s conclusion in footnote 9, Justice Frankfurter’s dissent argued that both the Fifth and Seventh Circuits addressed the same broad question — whether “the Northern District of Illinois was a jurisdiction where the action ‘might have been brought.’ ” 363 U.S. at 346, 80 S.Ct. at 1091 (Frankfurter, J., dissenting). The dissenting Justices objected to the “judicial unseemliness” of two courts of equal authority both considering the exact same issue and reaching contrary conclusions. Id. The dissent would have held that the Seventh Circuit must defer to the earlier decision by the Fifth Circuit. Justice Frankfurter stated:" }, { "docid": "18900379", "title": "", "text": "Mandamus was res judicata on the issue of the Illinois Court’s jurisdiction: That order did not purport to determine the jurisdiction of the transferee court and therefore did not preclude Judge Hoffman [the Illinois District Court Judge] of power to determine his own jurisdiction, nor did it preclude the power of the Seventh Circuit to review his action. . . . Here the sole basis of the right of the Fifth Circuit to entertain the petition for a writ of mandamus was to protect its appellate jurisdiction, and, by denying leave to file the petition, it forsook such right, but it did not thereby determine that the Illinois District Court had jurisdiction of the action. 363 U.S. at 340-41 n.9, 80 S.Ct. at 1088 (citations omitted). McDonnell Douglas attempts to distinguish Hoffman v. Blaski from the instant case by arguing that the Fifth Circuit in Ex parte Blaski rejected the Petition for a Writ of Mandamus without giving serious consideration to the merits of the issues presented, whereas the Ninth Circuit in the instant case invited briefs from the parties, evidencing its careful consideration of the issues. We can find no basis for this distinction. The Fifth Circuit’s Opinion in Blaski carefully set forth the facts of the suit, weighed the arguments of the parties, discussed the authorities on the issues presented, and outlined the rationale of its denial of the Petition. By contrast, the Ninth Circuit in the instant case issued a one-line Order denying plaintiff’s Petition. Based upon the evidence before us, we see no superior rationale in the Ninth Circuit’s Order which would justify the distinction which McDonnell Douglas seeks to draw. There are other obvious reasons why the Ninth Circuit’s one-line denial of a Writ of Mandamus may not operate as res judicata on the jurisdictional issues of this case, one of which was pointed out by the Supreme Court in Hoffman v. Blaski in the language quoted above. The sole basis of the right of the Appellate court to entertain the Petition for a Writ of Mandamus is to protect its appellate jurisdiction, and by" }, { "docid": "22891598", "title": "", "text": "of the jurisdiction question would permit a further delay in this litigation on the basis of a preliminary matter, as the District of Columbia district court presumably would then consider whether jurisdiction over all defendants exists in that district. But, as Justice Frankfurter has argued, “[sjurely a seemly system of judicial remedies . . . regarding controverted trans fer provisions of the United States Code should encourage, not discourage, quick settlement of questions of transfer. ...” Id. The Court of Appeals for the Sixth Circuit has similarly distinguished Blaski in Skil Corp. v. Millers Falls Co., 541 F.2d 554 (6th Cir.), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 631 (1976). In Skil, the transferor court’s order to transfer the action was challenged through an unsuccessful petition for mandamus to the Seventh Circuit. The transferee court then denied a motion to remand, and on interlocutory appeal, the Sixth Circuit affirmed. Concluding that the precise same issue was raised before both courts of appeals, the Sixth Circuit held that it was bound by the Seventh Circuit’s decision on the merits that the transfer was valid under the principles of res judicata and the law of the case. The court distinguished Blaski by noting that the Fifth Circuit, in reviewing the order of the transferor court in Blaski, never reached the merits of the transfer but merely denied leave to file a petition for a writ of mandamus. In discussing the law of the case, the Skil court quoted from Professor Moore: “[S]uppose the district court orders a transfer of the action. If this order is then reviewed by an appellate court on the merits, sustained, and the transfer accordingly effected, the transferee-district court should accept the ruling as the law of the case for it, and there should be no further transfer except under the most impelling and unusual circumstances. (IV J. Moore, Federal Practice ¶ 0.404(8) at 531-32 (2d ed. 1974) [footnotes omitted])” 541 F.2d at 558. B. In concluding that Hoffman v. Blaski should be distinguished, and that traditional law of the case principles should govern the" }, { "docid": "17612595", "title": "", "text": "these cases to Illinois, thereby upholding the transfer of venue to Ohio? The issue before the Seventh Circuit was whether there existed “exceptional circumstances amounting to a judicial ‘usurpation of pow er’ ” that would justify the invocation of such an “extraordinary remedy” as a writ of mandamus. As the Supreme Court has recently reiterated, “The remedy of mandamus, is a drastic one, to be invoked only in extraordinary situations.” It is not a substitute for an interlocutory appeal, but rather a tool “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” The majority decision is constructed upon the proposition that when the Seventh Circuit denied the petition for a writ of mandamus, it necessarily reached the merits of the transfer-of-venue question and determined that the district to which the action had been transferred was one in which it could have been brought originally. Thus, according to the majority, mandamus would have issued if the transferee district had not been a proper one for venue, and under that view, an incorrect transfer by the Illinois district court would have amounted to a usurpation of judicial power. This reasoning does not, however, withstand close analysis. It has not been suggested that Judge Hoffman exceeded the bounds of his judicial authority in transferring the law suit. No one disputes that he had an in personam and an in rem base for jurisdiction. Such bases existed regardless of whether the transfer was properly granted. The statutory requirement of section 1404(a) concerns the jurisdiction of the court to which the action is transferred and not, as the majority asserts, the jurisdiction of the court ordering the transfer. Therefore, if Judge Hoffman transferred the case to a district in which there was no venue as to one of the parties, he committed an error of law — but he did not exceed his jurisdiction. To hold otherwise would be tantamount to ruling that mandamus is available whenever a party claims that a case was transferred" }, { "docid": "22891593", "title": "", "text": "before the Court. The Court stated: “No claim is made here that the order of the Fifth Circuit denying the motion of respondents [plaintiffs] in the Blaski case for leave to file a petition for writ of mandamus, 245 F.2d 737, precluded Judge Hoffman or the Seventh Circuit from remanding that case. 363 U.S. at 340 & n.9, 80 S.Ct. at 1088 & n.9 (citations omitted). In the present case, the New Jersey district court interpreted this quotation from Blaski as allowing the transferee court to redetermine the question of jurisdiction in that court. We note, however, the significant differences between the Blaski facts and the facts of this case. In Blaski, neither the transferor court nor the court of appeals for that circuit determined whether venue and personal jurisdiction were proper in the transferee court. In denying leave to file a petition for a writ of mandamus, the Fifth Circuit concluded that such a determination was unnecessary; the court held that a transfer could be made even to a district where the defendant waived venue, or personal jurisdiction. Therefore, as the Supreme Court stated in footnote 9, the Fifth Circuit’s order “did not purport to determine the jurisdiction of the transferee court.” 363 U.S. at 340 n.9, 80 S.Ct. at 1088 n.9. In the instant case, however, the District of Columbia district court recognized the central holding of Blaski—a suit can only be transferred to a district in which the plaintiff had a right to bring the action originally. Unlike in Blaski, where the transferor court and its appellate court did not consider whether the plaintiff had a right to sue originally in the transferee court, Judge Richey did consider this issue and found that venue and personal jurisdiction were proper in New Jersey. We conclude that Blaski should be interpreted in the context of its own facts and should be read to allow a determination of venue and jurisdiction by the transferee court only when this determination has not previously been made by the transferor court. Therefore, the conclusion in footnote 9 of Blaski that the transferee court" }, { "docid": "22698578", "title": "", "text": "the respondents had a right to bring the action, and, hence, the court was without power to transfer it to that district. Without mentioning the question raised by that objection, the court found that the proposed transfer would be “for the convenience of the parties and witnesses and in the interest of justice,” and ordered the case transferred to the district of Utah. Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing the District Court to reverse its order. After hearing, the Seventh Circuit, following its decision in Blaski v. Hoffman, supra, granted the writ. 261 F. 2d 467. To settle the conflict that has arisen among the circuits respecting the proper interpretation and application of § 1404 (a), we granted certiorari. 359 U. S. 904; 361 U. S. 809. Without sacrifice or slight of any tenable position, the parties have in this Court commendably narrowed their contentions to the. scope of the only relevant inquiry. The points of contention may be sharpened by first observing what is not in contest. Discretion of the district judges concerned is not involved. Propriety of the remedy of mandamus is not assailed. No claim is made here that the order of the Fifth Circuit denying the motion of respondents in the Blaski case for leave to file a petition for writ of mandamus, 245 F. 2d 737, precluded Judge Hoffman or the Seventh Circuit from remanding that case. Petitioners concede that these actions were properly brought in the respective transferor forums; that statutory venue did not exist over either of these actions in the respective transferee districts, and that the respective defendants were not within the reach of the process of the respective transferee courts. They concede, too, that § 1404 (a), being “not unlimited,” “may be utilized only to direct an action to any other district or division 'where it might have been brought,’ ” and that, like the superseded doctrine of jorum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 507, the statute requires “an alternative forum in which plaintiff might proceed.”" }, { "docid": "22891591", "title": "", "text": "division where [the action] might have been brought.” 28 U.S.C. § 1404(a). The major holding in Blaski, not disputed here, was that the phrase “where [the action] might have been brought” means a district where the plaintiff had a right to bring the suit originally and does not include those districts in which the defendants consent to jurisdiction or venue. 363 U.S. at 342-44, 80 S.Ct. at 1088-1090. The aspect of Blaski that is involved here is contained in footnote 9 of the opinion, 363 U.S. at 340 & n.9, 80 S.Ct. at 1088 n.9. Some background to Blaski is necessary to understand that controversial footnote. Blaski, a resident of Illinois, was one of several plaintiffs in a suit for patent infringement brought against a Texas corporation and a resident of Texas in the Northern District of Texas. On defendants’ motion, the district court transferred the action to the United States District Court for the Northern District of Illinois under 28 U.S.C. § 1404(a) “[f]or the convenience of parties and witnesses, in the interest of justice.” Plaintiffs opposed the transfer on the grounds that venue and personal jurisdiction were both improper in Illinois. Plaintiffs then moved the United States Court of Appeals for the Fifth Circuit for leave to file a petition for a writ of mandamus directing the vacation of the Texas district court’s order. The Fifth Circuit denied the motion and the case was trans ferred to Judge Hoffman in the Northern District of Illinois. Once again arguing that neither venue nor personal jurisdiction were proper in Illinois, plaintiffs filed a motion before Judge Hoffman seeking an order remanding the action to Texas. Judge Hoffman denied this motion, but the Seventh Circuit granted plaintiffs’ petition for a writ of mandamus directing Judge Hoffman to reverse his order. The Seventh Circuit concluded that the Northern District of Illinois was not a district in which the plaintiffs had a right to bring the suit originally and, therefore, the transfer to Illinois was improper. Before affirming this conclusion of the Seventh Circuit, the Supreme Court first discussed what issues were not" }, { "docid": "18900378", "title": "", "text": "Illinois. Despite Blaski’s objections that, since the defendants could not have been served with process in Illinois, the transferee court was not a forum in which the action could have, been brought, the Texas court transferred the case to the Northern District of Illinois. Thereupon, Blaski moved in the Fifth Circuit for leave to file a Petition for a Writ of Mandamus directing the vacation of that Order, but the Motion was denied. Ex parte Blaski, 245 F.2d 737 (5th Cir.), cert. denied, 355 U.S. 872, 78 S.Ct. 122, 2 L.Ed.2d 76 (1957). Blaski promptly thereafter moved in the Illinois court for an Order remanding the action to the Texas court. When this Motion was denied, Blaski petitioned the Seventh Circuit for a Writ of Mandamus to compel the Illinois district court to reverse its Order. The Seventh Circuit granted this Petition, Blaski v. Hoffman, 260 F.2d 317 (7th Cir. 1958), and the Supreme Court granted certiorari. The Supreme Court rejected the argument that the Fifth Circuit’s denial of the Petition for a Writ of Mandamus was res judicata on the issue of the Illinois Court’s jurisdiction: That order did not purport to determine the jurisdiction of the transferee court and therefore did not preclude Judge Hoffman [the Illinois District Court Judge] of power to determine his own jurisdiction, nor did it preclude the power of the Seventh Circuit to review his action. . . . Here the sole basis of the right of the Fifth Circuit to entertain the petition for a writ of mandamus was to protect its appellate jurisdiction, and, by denying leave to file the petition, it forsook such right, but it did not thereby determine that the Illinois District Court had jurisdiction of the action. 363 U.S. at 340-41 n.9, 80 S.Ct. at 1088 (citations omitted). McDonnell Douglas attempts to distinguish Hoffman v. Blaski from the instant case by arguing that the Fifth Circuit in Ex parte Blaski rejected the Petition for a Writ of Mandamus without giving serious consideration to the merits of the issues presented, whereas the Ninth Circuit in the instant case" }, { "docid": "22891592", "title": "", "text": "justice.” Plaintiffs opposed the transfer on the grounds that venue and personal jurisdiction were both improper in Illinois. Plaintiffs then moved the United States Court of Appeals for the Fifth Circuit for leave to file a petition for a writ of mandamus directing the vacation of the Texas district court’s order. The Fifth Circuit denied the motion and the case was trans ferred to Judge Hoffman in the Northern District of Illinois. Once again arguing that neither venue nor personal jurisdiction were proper in Illinois, plaintiffs filed a motion before Judge Hoffman seeking an order remanding the action to Texas. Judge Hoffman denied this motion, but the Seventh Circuit granted plaintiffs’ petition for a writ of mandamus directing Judge Hoffman to reverse his order. The Seventh Circuit concluded that the Northern District of Illinois was not a district in which the plaintiffs had a right to bring the suit originally and, therefore, the transfer to Illinois was improper. Before affirming this conclusion of the Seventh Circuit, the Supreme Court first discussed what issues were not before the Court. The Court stated: “No claim is made here that the order of the Fifth Circuit denying the motion of respondents [plaintiffs] in the Blaski case for leave to file a petition for writ of mandamus, 245 F.2d 737, precluded Judge Hoffman or the Seventh Circuit from remanding that case. 363 U.S. at 340 & n.9, 80 S.Ct. at 1088 & n.9 (citations omitted). In the present case, the New Jersey district court interpreted this quotation from Blaski as allowing the transferee court to redetermine the question of jurisdiction in that court. We note, however, the significant differences between the Blaski facts and the facts of this case. In Blaski, neither the transferor court nor the court of appeals for that circuit determined whether venue and personal jurisdiction were proper in the transferee court. In denying leave to file a petition for a writ of mandamus, the Fifth Circuit concluded that such a determination was unnecessary; the court held that a transfer could be made even to a district where the defendant waived" }, { "docid": "17612569", "title": "", "text": "issue of the validity of Judge Hoffman’s order of transfer, and we are bound by the decision. In denying the writ, the Seventh Circuit did not base its decision on the ground that mandamus and prohibition were not the appropriate remedies. The order entered by the Seventh Circuit does not permit any such narrow construction. Skil argues that we must apply the rule of Blaski in spite of the Seventh Circuit’s decision, because in that case the Supreme Court affirmed a remand order of the Seventh Circuit in spite of the fact that a mandamus action to prevent the transfer had been unsuccessful in the Fifth Circuit. In Blaski, the Fifth Circuit’s action was held not res judicata as to the merits of the transfer because the Fifth Circuit never reached the merits. The party opposing the transfer had merely moved for leave to file a petition for a writ of mandamus, and the Fifth Circuit denied the motion. Here, Skil filed a petition, the Seventh Circuit 'considered the merits of the petition and denied relief after reviewing the petition, tnfe memorandum in support thereof, the supplemental appendix and the joint answer\\of the respondents. further contention of Skil is that the Seventh Circuit’s denial of a writ of mandamus and prohibition is not binding on this Court because the standard of review in a mandamus action differs from the standard of review in an interlocutory appeal. This distinction does not change the result in this case. Skil argued in the Seventh Circuit that Judge Hoffman lacked power to transfer the case because of Blaski. Had Skil been correct, the Seventh Circuit would have been required to issue the writ. By denying the writ, the Seventh Circuit must necessarily have decided that Judge Hoffman had power to transfer the case because the District Court in Ohio could properly exercise jurisdiction over the action. The standard for testing jurisdiction does not differ in a mandamus action from the standard used in an appeal. The Seventh Circuit would not have refused to issue the writ had Judge Hoffman lacked power to transfer the" }, { "docid": "17612568", "title": "", "text": "of Illinois, since the Illinois District Court lacked the power to transfer the case to the Northern District of Ohio. Skil relies upon the case of Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960), a decision by a divided court, which held that a § 1404(a) transfer can only be made to a District Court in which the plaintiff could have originally brought the action while complying with the venue and service of process statutes. Skil argues that the record does not show that the Northern District of Ohio is a proper venue as to all defendants, and therefore the Illinois District Court lacked the power under § 1404(a) to transfer the case to the Northern District of Ohio. This is precisely the very same issue that the Seventh Circuit considered and decided against Skil in the mandamus and prohibition action brought in that Court by Skil to set aside this transfer. It is thus clear that the decision of the Seventh Circuit against Skil is res judicata on the issue of the validity of Judge Hoffman’s order of transfer, and we are bound by the decision. In denying the writ, the Seventh Circuit did not base its decision on the ground that mandamus and prohibition were not the appropriate remedies. The order entered by the Seventh Circuit does not permit any such narrow construction. Skil argues that we must apply the rule of Blaski in spite of the Seventh Circuit’s decision, because in that case the Supreme Court affirmed a remand order of the Seventh Circuit in spite of the fact that a mandamus action to prevent the transfer had been unsuccessful in the Fifth Circuit. In Blaski, the Fifth Circuit’s action was held not res judicata as to the merits of the transfer because the Fifth Circuit never reached the merits. The party opposing the transfer had merely moved for leave to file a petition for a writ of mandamus, and the Fifth Circuit denied the motion. Here, Skil filed a petition, the Seventh Circuit 'considered the merits of the petition and denied" }, { "docid": "22891606", "title": "", "text": "provided by law.” . Until 1979, Hayman Company and Talco were distributors of Sharp’s products, but their relationships were either terminated, as in the case of Hayman Company, or restricted, as with Talco. Hayman Company and Talco brought separate suits in the New Jersey state courts for wrongful termination of all or part of their dealerships. These suits are still awaiting final disposition. . The court of appeals also stated that if the district court were unable to transfer the entire case, it should consider severance and a partial transfer. 655 F.2d at 1230. “That order did not purport to determine the jurisdiction of the transferee court and therefore did not preclude Judge Hoffman of power to determine his own jurisdiction, nor did it preclude the power of the Seventh Circuit to review his action.” . The issue in Blaski of whether the action “might have been brought” in the Northern District of Illinois can be seen as encompassing two separate questions. First is the legal question of whether § 1404 requires that the plaintiffs must have the right to bring the suit originally in the transferee court, regardless of the defendants’ consent. This issue was addressed independently by both the Fifth and Seventh Circuits; the reconsideration of this legal question is what Justice Frankfurter found objectionable. The second question is the mere factual one of whether the plaintiffs in Blaski actually had the right to bring the suit originally in the Northern District of Illinois. The Fifth Circuit did not need to address this issue because of its legal conclusion that the transfer statute did not require that the plaintiffs have the right to bring the suit originally in the transferee court. The majority stressed in footnote 9 that, in denying leave to file a petition for a writ of mandamus, the Fifth Circuit did not reach the merits of this factual issue. Therefore, the majority concluded that there was no reconsideration of the Fifth Circuit’s decision by the Seventh Circuit. See Skil Corp. v. Millers Falls Co., 541 F.2d 554, 557 (6th Cir.), cert. denied, 429 U.S. 1029," }, { "docid": "22698579", "title": "", "text": "in contest. Discretion of the district judges concerned is not involved. Propriety of the remedy of mandamus is not assailed. No claim is made here that the order of the Fifth Circuit denying the motion of respondents in the Blaski case for leave to file a petition for writ of mandamus, 245 F. 2d 737, precluded Judge Hoffman or the Seventh Circuit from remanding that case. Petitioners concede that these actions were properly brought in the respective transferor forums; that statutory venue did not exist over either of these actions in the respective transferee districts, and that the respective defendants were not within the reach of the process of the respective transferee courts. They concede, too, that § 1404 (a), being “not unlimited,” “may be utilized only to direct an action to any other district or division 'where it might have been brought,’ ” and that, like the superseded doctrine of jorum non conveniens, Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 507, the statute requires “an alternative forum in which plaintiff might proceed.” Petitioners’ “thesis” and sole claim is that § 1404 (a), being remedial, Ex parte Collett, 337 U. S. 55, 71, should be broadly construed, and, when so construed, the phrase “where it might have been brought” should be held to relate not only to the time of the bringing of the action, but also to the time of the transfer; and that “if at such time the transferee forum has the power to adjudicate the issues of the action, it is a forum in which the action might then have been brought.” (Emphasis added.) They argue that in the interim between the bringing of the action and the filing of a motion to transfer it, the defendants may move their residence to, or, if corporations, may begin the transaction of business in, some other district, and, if such is done, the phrase “where it might have been brought” should be construed to empower the District Court to transfer the action, on motion of the defendants, to such other district; and that, similarly, if, as here," }, { "docid": "17612590", "title": "", "text": "courts could have acquired jurisdiction over these actions only if properly brought in those courts, or if validly transferred thereto under § 1404(a).” (363 U.S. at 343, 80 S.Ct. at 1089.) The Seventh Circuit was required, in ruling on the mandamus petition, to consider whether the transferor court usurped its power and whether the transferee court could properly acquire jurisdiction. . See also the recent decision of the Supreme Court in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), wherein the Court held that mandamus was the proper method of attacking a remand order of a case removed from a state court by a District Court for reasons not authorized by the removal statutes. . The question whether the Fifth Circuit’s order denying a motion for leave to file a petition for writ of mandamus was a binding determination of the transferee court’s jurisdiction was not at issue in that case: “No claim is made here that the order of the Fifth Circuit denying the motion of respondents in the Blaski case for leave to file a petition for writ of mandamus, 245 F.2d 737, precluded Judge Hoffman or the Seventh Circuit from remanding that case.” 363 U.S. at 340, 80 S.Ct. at 1088. . It is the transfer order itself, approved by the Seventh Circuit’s order, which becomes the law of the case. . In approving the rule that mutuality of parties is not necessary to establishment of estoppel against a litigant who had lost an earlier patent litigation, the Supreme Court disapproved “[p]ermitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out”. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971). Similarly, once Skil had sued the manufacturer of the device which is the basis of this litigation, and the suit had been docketed in the Northern District of Ohio, we see no good purpose to be served in permitting Skil to continue forum-shopping by searching for and suing Lucerne’s customers in" }, { "docid": "22698575", "title": "", "text": "court was without power to transfer it to that district. Without mentioning that objection or the question it raised, the District Court found that “the motion should be granted for the convenience of the parties and witnesses in the interest of justice,” and ordered the case transferred to the Illinois district. Thereupon, respondents moved in the Fifth Circuit for leave to file a petition for a writ of mandamus directing the vacation of that order. That court, holding that “[t]he purposes for which § 1404 (a) was enacted would be unduly circumscribed if a transfer could not be made ‘in the interest of justice’ to a district where the defendants not only waive venue but to which they seek the transfer,” denied the motion. Ex parte Blaski, 245 F. 2d 737, 738. Upon receipt of a certified copy of the pleadings and record, the Illinois District Court assigned the action to Judge Hoffman’s calendar. Respondents promptly moved for an order remanding the action on the ground that the Texas District Court did not have power to make the transfer order and, hence, the Illinois District Court was not thereby vested with jurisdiction of the action. After expressing his view that the “weight of reason and logic” favored “retransfer of this case to Texas,” Judge Hoffman, with misgivings, denied the motion. Respondents then filed in the Seventh Circuit a petition for a writ of mandamus directing Judge Hoffman to reverse his order. After hearing and rehearing, the Seventh Circuit, holding that “[w]hen Congress provided [in § 1404 (a)] for transfer [of a civil action] to a district 'where it might have been brought,’ it is hardly open to doubt but that it referred to a district where the plaintiff . . . had a right to bring the case,” and that respondents did not have a right to bring this action in the Illinois district, granted the writ, one judge dissenting. 260 F. 2d 317. No. 26, Behimer. — Diversity of citizenship then existing, respondents, Behimer and Roberts, residents of Illinois and New York, respectively, brought this stockholders’ derivative action, as" } ]

[ { "docid": "20333249", "title": "", "text": "meaning. Cabell v. Markham, 148 F. 2d 737, 739 (2d Cir.), aff’d, 326 U.S. 404 (1945). Turning then to a consideration of section 751, that section is pregnant with the implication that it is the ITA’s exclusive responsibility to clarify the scope of dumping findings. It provides that the ITA shall determine the value and price of “merchandise subject to the antidumping duty order and included within that determination, * * *” Section 751 goes on to state that the ITA “shall publish notice of the results of the determination of antidumping duties * * *, and that determination shall be the basis for the assessment of antidumping duties on entries of the merchandise included within the determination.* * *” That section makes no mention of the Customs’ Service. What is more, in Royal Business Machines v. United States, 1 CIT 80, 507 F. Supp. 1007 (1980), aff’d, 69 CCPA —, 669 F. 2d 691 (1982), this court implicitly recognized that the ITA has the authority not only to define the scope of an antidumping duty investigation but also to clarify the statement of its scope: The court distinguishes between the authority of the Customs Service to classify according to tariff classifications (19 U.S.C. § 1500) and the power of the agencies administering the antidumping law to determine a class or kind of merchandise. The determinations under the antidumping law may properly result in the creation of classes which do not correspond to classifications found in the tariff schedules or may define or modify a known classification in a manner not contemplated or desired by the Customs Service. Within the context of an anti-dumping proceeding the administering agency, at the proper time, can define the class in its terms. The Customs Service is placed in a ministerial role by the antidumping law. * * * Accordingly, it may not independently modify, directly or indirectly the determinations, their underlying facts, or their enforcement. Id. at 87 n.18, 507 F. Supp. at 1014 n.18. It follows that if Customs is relegated to a mere “ministerial role,” then the ITA necessarily must have" } ]

[ { "docid": "4780367", "title": "", "text": "than fair value and were materially injuring a United States industry. 49 Fed. Reg. 18,336-37. On June 1, 1984, Samsung submitted a letter to Commerce requesting a binding determination as to the applicability of the CTV Order to the importation of certain television components and subassemblies. P.R. Doc. 1. On January 9, 1986, Commerce directed Customs officials to suspend liquidation of, but not collect cash deposits on, printed circuit boards and color picture tubes pending resolution of whether those items were covered by the CTV Order. See P.R. Docs. 13-15. Commerce subsequently notified the interested parties on January 23, 1986 of the suspension of liquidation and afforded the parties an opportunity to respond via comments submitted by February 5, 1986 on any matters they wished considered. See P.R. Doc. 2. Plaintiffs and intervenors filed timely comments. Commerce determined it had sufficient information and the authority to clarify the CTV Order based on the comments it had received from the interested parties. The comments submitted to Commerce contained the relevant excerpts from and references to documents Commerce allegedly had taken into consideration in making its less than fair value determination, as well as the injury determination phase of the investigation conducted by the ITC. On October 20,1986, Commerce informed plaintiff Gold Star that printed circuit boards and color picture tubes when subsequently assembled, whether imported together or separately, were within the scope of the CTV Order. P.R. Doc. 13. A comparable letter dated November 21, 1986 was sent to Samsung. P.R. Doc. 15. Pursuant to its scope clarification, Commerce, on October 31, 1986, directed all Customs officials to collect cash deposits on printed circuit boards and color picture tubes covered by the clarified CTV Order. P.R. Doc. 14. Discussion This Court may review a determination by Commerce as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing antidumping duty order. 19 U.S.C. § 1516a(a)(2)(B)(vi) (Supp. II1984). Commerce’s determination will be sustained if it is supported by substantial evidence in the record and is otherwise in accordance with Law. 19 U.S.C. §" }, { "docid": "23682717", "title": "", "text": "scope of a final antidumping duty order, the ITA may not modify the scope of that order. Alsthom Atlantique, 787 F.2d at 571. CONCLUSION For the foregoing reasons, the April 7, 1992 judgment of the CIT is AFFIRMED. . A nylon core flat belt is a continuous, multilayer strip made up of a core of oriented nylon sheet having on each surface a nylon, fabric or rubber layer. . 54 Fed.Reg. 25314 (the ITA published a correction to this order on August 4, 1989, 54 Fed.Reg. 32104, specifically excluding certain belts (not pertinent here) from the scope of that order). . Of interest, Commerce specifically provided for such an analysis in its recently promulgated regulation 19 CFR § 353.29(i). However, Commerce issued this regulation on March 9, 1990, 55 Fed.Reg. 9046, after the date of the ITA’s scope ruling. This regulation was therefore not applicable during any stage of the challenged proceeding. . 53 Fed.Reg. 28036 (the ITA republished the notice on August 4, 1988, 53 Fed.Reg. 29366, because some paragraphs were printed out of order in the first publication). . 54 Fed.Reg. 5114. . Nitta argues in this appeal that its nylon core flat belts were not covered by any of the tariff classification numbers in the ITA’s notice of the antidumping investigation. The Government counters that Nitta has never explained the basis for this assertion. .The telex reiterated that the actual description of the scope of the investigation was controlling, and that the merchandise covered by the investigation included \"flat belts, in part or wholly of rubber or plastic, and containing textile fiber (including glass fiber) or steel wire, cord or strand.” . Gates relied upon Diversified Products, 572 F.Supp. at 887 and Royal Business Machines, Inc. v. United States, 1 CIT 80, 507 F.Supp. 1007 (1980), aff'd, 669 F.2d 692 (CCPA 1982) for this proposition. . 54 Fed.Reg. 15485. 10. Ernest Siegling and Siegling America, Inc. had also submitted to the ITA their viewpoints as to whether nylon core flat belts and another type of belt, spindle belting, should be excluded from the scope of the investigation." }, { "docid": "4780376", "title": "", "text": "are used as replacement parts, entering the U.S. market as PCBs or CPTs, not CTVs. Plaintiffs Samsung claim that the definition of the product adopted a \"capable of receiving a broadcast signal” standard which was embodied in the petition: The imported articles under investigation are complete and incomplete color television receivers (CTVs) imported from Taiwan and Korea. Complete receivers are fully assembled and ready to function, whereas incomplete receivers and kits consist of a color picture tube and printed circuit-board or ceramic substrate with components, which when assembled are capable of receiving a television signal. ITC Final Determination at 3-4; see also Samsung Memorandum at 20 (emphasis added). Samsung claims its merchandise, even if it had been imported together, was incapable of receiving a broadcast signal and therefore outside the scope of the CTV Order. Samsung, however, in describing its operations in the U.S., clearly indicated that its operation fell under the assembly in U.S. production facilities terminology utilized by the ITC in defining the scope of the investigation. See C.R. Doc. 4. Moreover, the above definition does not specify what is needed in order to form an incomplete receiver; it merely states that an incomplete receiver consists of PCBs and CPTs \"which when assembled are capable of receiving a television signal.” ITC Final Determination at A-2 to A-3. This ambiguity is adequately corrected by the scope clarification letter. Something which is \"incomplete” needs additions in order to make it complete, and an incomplete receiver needs something added in order to make it a complete receiver. Since the definition of an incomplete receiver never specified whether PCBs and CPTs assembled, by themselves, must be capable of receiving a television signal, or whether other parts need be added, Commerce could properly resolve the ambiguity by issuing the scope clarification letter. Plaintiffs have misconstrued the intent of the ITC determinations. The language throughout the proceedings encompassed incomplete receivers assembled in the United States. The clarification letter applies only to PCBs and CPTs which are subsequently assembled to form CTVs; it does not apply to those items sold independently as PCBs and CPTs," }, { "docid": "4780371", "title": "", "text": "which those determinations depended. Royal Business Machines, 1 CIT at 86-87, 507 F. Supp. at 1013. At each stage of the investigatory proceedings, the importations subject to antidumping duties were defined as \"color television receivers, complete or incomplete.” An incomplete receiver was characterized in the ITC investigations as: \"a color picture tube [CPT] and a printed circuit board [PCB] or ceramic substrates with components assembled thereon * * *.” P.R. Doc. 7 at 5 (citing Color Television Receivers From the Republic of Korea and Taiwan, USITC Pub. 1514, Inv. Nos. 731-TA-134, -135 (Final) at A-2 to A-3 (April 1984) (hereinafter \"ITC Final Determination”)). Plaintiffs, however, contend that the class or kind of merchandise subject to the CTV Order does not include separately imported sub-assemblies and components such as PCBs and CPTs. Gold Star’s Brief in Support of Motion for Judgment on the Agency Record (corrected public version) at 50-51 (hereinafter \"Gold Star Brief at-.”); Plaintiffs’ Samsung Memorandum in Support of Their Motion for Judgment Upon the Administrative Record at 37-38 (hereinafter \",Samsung Memorandum at-.”). They argue that a separately imported PCB or CPT is outside the scope of the investigations because neither, by itself, constitutes an incomplete receiver. Gold Star Brief at 52, 54-55; Samsung Memorandum at 50-51. The Court, however, finds that separately imported PCBs and CPTs which are subsequently assembled into color television receivers are of the class or kind of merchandise intended to be covered by the CTV Order. Ample evidence was developed during the course of the proceedings which supports the conclusion that Commerce contemplated assembly of PCBs and CPTs into CTVs within the United States. The ITC, for example, stated that \"incomplete color television receivers * * * are imported by U.S. producers and assembled into complete receivers in U.S. production facilities.” ITC Final Determination at A-2; see also Samsung Memorandum at 20. Furthermore, the definition of incomplete receivers consisted of CPTs and PCBs \"which when assembled are capable of receiving a television signal.” ITC Final Determination at 3-4; Color Television Receivers From the Republic of Korea and Taiwan, USITC Pub. 1396, Inv. Nos. 731-TA-134," }, { "docid": "4780374", "title": "", "text": "CTV Order, the domestic industry would continue to suffer the injurious consequences of dumped goods. Plaintiffs Gold Star admit that \"[w]hen an incomplete receiver is imported, i.e., a CPT imported together with a PCB, the merchandise is within the scope of the ITC’s determination and antidumping duties can be imposed.” P.R. Doc. 5 at 9-10 (emphasis in original). Gold Star argues, however, that it is not subject to the CTV Order because the value added by its American operations is significant and the ITC held it to be a U.S. domestic producer of CTVs. Gold Star Brief at 6-7 (citing ITC Final Determination at 8-9). The Court fails to see the relevance of Gold Star’s argument. The clarification letter explicitly stated that the PCBs and the CPTs covered are those which are imported from Korea and are subsequently assembled into color television receivers. P.R. Docs. 13, 15. Since Gold Star has conceded that its PCBs and CPTs, when imported together, are incomplete receivers within the scope of the CTV Order, Gold Star cannot escape the imposition of antidumping duties by any subsequent value added to the incomplete receivers If Gold Star combines a Korean PCB with a Korean CPT, then it is an incomplete receiver as defined by Commerce. Commerce has evaluated the effect of Korean incomplete receivers on the U.S. market and found them to have materially injured U.S. industry. Therefore, the value added by Gold Star does not affect the treatment of PCBs and CPTs subsequently assembled together under the CTV Order. Plaintiffs further contend that separate importations of PCBs and CPTs were specifically excluded by the ITC and refer to the following language to support their contention: \"imported subassemblies and components for television receivers * * * are outside the scope of these investigations,” see Gold Star Brief at 13 (quoting ITC Preliminary Investigation at A-40); and \"[vjarious imported subassem-blies and components used in the manufacture of color television receivers are not subject to these investigations.” ITC Final Determination at A-3. However, Commerce was excluding from the scope of the CTV Order those PCBs and CPTs which" }, { "docid": "4933501", "title": "", "text": "make a determination. We reviewed the petition, the initial investigation, and the ITC’s determination, and we find that acrylic sheet, that is clear and/or translucent, regardless of optical clarity, is included within the scope of the finding. 48 Fed.Reg. 34490 (1983). The plaintiff commenced the instant action by the filing of a summons and complaint on August 26, 1983. By order of the court dated December 22, 1983, the Rohm and Haas Company became an intervenor in this action. It is undisputed that in a § 1675(a) review proceeding the ITA may clarify the scope of a prior dumping finding. Clarification of a dumping finding, however, must be distinguished from an attempt to modify or change the original finding. Royal Business Machines v. United States, 1 CIT 80, 86-87, 507 F.Supp. 1007,1013-14 (1980), aff'd, 69 CCPA —, 669 F.2d 692 (1982); Diversified Products Corp. v. United States, 572 F.Supp. 883, 6 CIT — (1983). In determining the scope of an antidumping finding, the ITA has recognized and employed certain criteria in ascertaining whether an imported product, not previously included, is of the class or kind of merchandise contemplated by the finding. Among the factors considered by the ITA are the general physical characteristics of the product; the expectations of the ultimate purchaser; the channels of trade in which the product is sold; the manner in which the product is advertised and displayed; and the ultimate use of the product. See Parts for Self-Propelled Bituminous Paving Equipment from Canada; Clarification of Scope and Preliminary Results of Administrative Review of Anti-dumping Finding, 46 Fed.Reg. 47806, 47807 (September 30, 1981). The foregoing criteria have been recognized and utilized by our appellate court as factors in determining whether an imported product belonged to a particular class or kind of merchandise for tariff classification purposes. See United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 587 (1976). This court in Diversified Products Corp. approved these criteria in determining whether a new product was within the class or kind of merchandise described" }, { "docid": "4780373", "title": "", "text": "-135 (Preliminary) at 4 (June 1983) (hereinafter \"ITC Preliminary Investigation”); see also Samsung Memorandum at 20; P.R. Doc. 12 at 20-22 (emphasis added). Therefore, the PCBs and CPTs are within the scope of the CTV Order whether imported in assembled form or imported separately and assembled together in the United States. Plaintiffs cannot avoid the imposition of antidumping duties merely by bifurcating their shipments. The Court will not allow such a transgression upon the antidumping duty laws of this country. The object of the dumping laws is to protect domestic producers against imported merchandise which \"is being, or is likely to be, sold in the United States at less than its fair value * * *.” 19 U.S.C. § 1673(1) (1982) (emphasis added). The present merchandise is sold on the U.S. market not as a PCB nor as a CPT, but as a color television receiver; the object of the original antidumping duty order. If the Court were to allow separate importations of PCBs and CPTs (subsequently assembled together) to escape the purview of the CTV Order, the domestic industry would continue to suffer the injurious consequences of dumped goods. Plaintiffs Gold Star admit that \"[w]hen an incomplete receiver is imported, i.e., a CPT imported together with a PCB, the merchandise is within the scope of the ITC’s determination and antidumping duties can be imposed.” P.R. Doc. 5 at 9-10 (emphasis in original). Gold Star argues, however, that it is not subject to the CTV Order because the value added by its American operations is significant and the ITC held it to be a U.S. domestic producer of CTVs. Gold Star Brief at 6-7 (citing ITC Final Determination at 8-9). The Court fails to see the relevance of Gold Star’s argument. The clarification letter explicitly stated that the PCBs and the CPTs covered are those which are imported from Korea and are subsequently assembled into color television receivers. P.R. Docs. 13, 15. Since Gold Star has conceded that its PCBs and CPTs, when imported together, are incomplete receivers within the scope of the CTV Order, Gold Star cannot escape the" }, { "docid": "4780377", "title": "", "text": "above definition does not specify what is needed in order to form an incomplete receiver; it merely states that an incomplete receiver consists of PCBs and CPTs \"which when assembled are capable of receiving a television signal.” ITC Final Determination at A-2 to A-3. This ambiguity is adequately corrected by the scope clarification letter. Something which is \"incomplete” needs additions in order to make it complete, and an incomplete receiver needs something added in order to make it a complete receiver. Since the definition of an incomplete receiver never specified whether PCBs and CPTs assembled, by themselves, must be capable of receiving a television signal, or whether other parts need be added, Commerce could properly resolve the ambiguity by issuing the scope clarification letter. Plaintiffs have misconstrued the intent of the ITC determinations. The language throughout the proceedings encompassed incomplete receivers assembled in the United States. The clarification letter applies only to PCBs and CPTs which are subsequently assembled to form CTVs; it does not apply to those items sold independently as PCBs and CPTs, or to those items subsequently combined with U.S. parts. The exclusion language referred to by plaintiffs is directed at CPTs and PCBs which are sold to unrelated purchasers as individual components for replacements or for assembly with American made components. In the questionnaires issued by Commerce to importers and producers, plaintiffs claim the scope of the investigations included only color television receivers, complete or incomplete, as provided in the TSUS item numbers 685.11 and 685.14, and that the following definition of \"incomplete television receiver” in the questionnaires utilized by the ITC during the investigation explicitly excluded separate imports of CPTs and PCBs: Assemblies * * * which consist at least of, or are covered in the same import entry with, a color picture tube and a printed circuit board or ceramic substrate, with components assembled thereon, designed to perform the intermediate frequency amplification functions or the picture and audio demodulation functions of a color television receiver, all the foregoing provided for in TSUS item 685.14. Samsung Memorandum at 19-20 (quoting Importers’ Questionnaire at 4; Producers’" }, { "docid": "4780368", "title": "", "text": "Commerce allegedly had taken into consideration in making its less than fair value determination, as well as the injury determination phase of the investigation conducted by the ITC. On October 20,1986, Commerce informed plaintiff Gold Star that printed circuit boards and color picture tubes when subsequently assembled, whether imported together or separately, were within the scope of the CTV Order. P.R. Doc. 13. A comparable letter dated November 21, 1986 was sent to Samsung. P.R. Doc. 15. Pursuant to its scope clarification, Commerce, on October 31, 1986, directed all Customs officials to collect cash deposits on printed circuit boards and color picture tubes covered by the clarified CTV Order. P.R. Doc. 14. Discussion This Court may review a determination by Commerce as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing antidumping duty order. 19 U.S.C. § 1516a(a)(2)(B)(vi) (Supp. II1984). Commerce’s determination will be sustained if it is supported by substantial evidence in the record and is otherwise in accordance with Law. 19 U.S.C. § 1516a(b)(l)(B). \"Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938): Matsushita Electric Industrial Co. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (1984). In the case at bar, Commerce originally described the merchandise covered under the CTV Order as all \"color television receivers, complete or incomplete * * * regardless of tariff classification.” 49 Fed. Reg. at 18,337; see also P.R. Doc. 1 at 3. The scope clarification letter included within the scope of the CTV Order, color picture tubes and printed circuit boards \"entered together or on separate entries” for subsequent assembly into color television receivers. P.R. Docs. 13, 15 (emphasis added). The issue is whether the PCBs and CPTs are of the class or kind of merchandise properly included within the scope of the CTV Order. The ITA has the authority to clarify and define the scope of an antidumping duty determination." }, { "docid": "4780369", "title": "", "text": "1516a(b)(l)(B). \"Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938): Matsushita Electric Industrial Co. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (1984). In the case at bar, Commerce originally described the merchandise covered under the CTV Order as all \"color television receivers, complete or incomplete * * * regardless of tariff classification.” 49 Fed. Reg. at 18,337; see also P.R. Doc. 1 at 3. The scope clarification letter included within the scope of the CTV Order, color picture tubes and printed circuit boards \"entered together or on separate entries” for subsequent assembly into color television receivers. P.R. Docs. 13, 15 (emphasis added). The issue is whether the PCBs and CPTs are of the class or kind of merchandise properly included within the scope of the CTV Order. The ITA has the authority to clarify and define the scope of an antidumping duty determination. Diversified Products Corp. v. United States, 6 CIT 155, 159, 572 F. Supp. 883, 887 (1983). However, while the ITA may clarify the dumping determination, it does not have the authority to change or modify the original determination. Alsthom Atlantique v. United States, 4 Fed. Cir. (T) 71, 78, 787 F.2d 565, 571 (1986): Kyowa Gas Chemical Industry Co. v. United States 7 CIT 138, 140, 582 F. Supp. 887, 889 (1984); Royal Business Machines, Inc. v. United States, 1 CIT 80, 86-87, 507 F. Supp. 1007, 1013 (1980), aff’d, 69 CCPA 61, 669 P.2d 692 (1982). To determine whether Commerce’s scope letter is a proper clarification of the CTV Order, the Court must examine each stage of the statutory proceedings: the final order must express the result of the previous determinations without alterations and neither the Commerce Department, as the administering authority, nor the Customs Service, by exercise of its classification authority, could legally change the results of the less than fair value and injury determinations or modify the facts or legal conclusions on" }, { "docid": "4780380", "title": "", "text": "denies plaintiffs’ motion for summary judgment on the administrative record and finds in favor of the defendants. The scope clarification letter issued by Commerce is held to be a proper clarification of the CTV Order and based on substantial evidence. Therefore, merchandise consisting of CPTs and PCBs imported from Korea, when subsequently assembled together to form color television receivers, is included within the scope of the CTV Order. The contents of a printed circuit board are described in P.R. Docs. 2,14. See P.R. Doc. 13 at 1; P.R. Doc. 5 at 7-8 (the ITC’s description of products subject to the investigation, Color Television Receivers From the Republic of Korea and Taiwan, USITC Pub. 1514, Inv. Nos. 731-TA-134, -135 (Final) at A-2, A-3 (April 1984)); P.R. Doc. 7 at 4 (49 Fed. Reg. 50,420 (Dep’t Comm. 1984) (final results of administrative review); 49 Fed. Reg. 18,336 (Dep’t Comm. 1984) (final antidumping duty order); 49 Fed. Reg. 7620 (Dep’t Comm. 1984) (final LTFV determination); 48 Fed. Reg. 48,487 (Dep’t Comm. 1983) (prelim, determination)). he position adopted by the Court is consistent with the General Agreement on Tariffs and Trade which defines a dumped product as being one which is \"introduced into the commerce of another country at less than its normal value * * Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade (antidumping code), April 12, 1979, art. 2, para. 1, 31 U.S.T. 4919, 4924-25, T.I.A.S. No. 9650 (entered into force Jan. 1,1980). The products here are \"introduced into the commerce” of the United States as CTVs, after a finding by the ITC that imports of Korean receivers, complete and incomplete, were injuring U.S. industry. The European Economic Community has recently adopted measures designed to prevent this type of circumvention. Their new Regulation allows the Community to impose antidumping duties on products which are \"introduced into the commerce of the Community after having been assembled or produced in the Community* * *” Regulation 1761/87, art. 1, O.J. L 167/9 (1987). However, several restrictions to the Regulation apply: the assembly or production must have been carried" }, { "docid": "4780372", "title": "", "text": "argue that a separately imported PCB or CPT is outside the scope of the investigations because neither, by itself, constitutes an incomplete receiver. Gold Star Brief at 52, 54-55; Samsung Memorandum at 50-51. The Court, however, finds that separately imported PCBs and CPTs which are subsequently assembled into color television receivers are of the class or kind of merchandise intended to be covered by the CTV Order. Ample evidence was developed during the course of the proceedings which supports the conclusion that Commerce contemplated assembly of PCBs and CPTs into CTVs within the United States. The ITC, for example, stated that \"incomplete color television receivers * * * are imported by U.S. producers and assembled into complete receivers in U.S. production facilities.” ITC Final Determination at A-2; see also Samsung Memorandum at 20. Furthermore, the definition of incomplete receivers consisted of CPTs and PCBs \"which when assembled are capable of receiving a television signal.” ITC Final Determination at 3-4; Color Television Receivers From the Republic of Korea and Taiwan, USITC Pub. 1396, Inv. Nos. 731-TA-134, -135 (Preliminary) at 4 (June 1983) (hereinafter \"ITC Preliminary Investigation”); see also Samsung Memorandum at 20; P.R. Doc. 12 at 20-22 (emphasis added). Therefore, the PCBs and CPTs are within the scope of the CTV Order whether imported in assembled form or imported separately and assembled together in the United States. Plaintiffs cannot avoid the imposition of antidumping duties merely by bifurcating their shipments. The Court will not allow such a transgression upon the antidumping duty laws of this country. The object of the dumping laws is to protect domestic producers against imported merchandise which \"is being, or is likely to be, sold in the United States at less than its fair value * * *.” 19 U.S.C. § 1673(1) (1982) (emphasis added). The present merchandise is sold on the U.S. market not as a PCB nor as a CPT, but as a color television receiver; the object of the original antidumping duty order. If the Court were to allow separate importations of PCBs and CPTs (subsequently assembled together) to escape the purview of the" }, { "docid": "4780378", "title": "", "text": "or to those items subsequently combined with U.S. parts. The exclusion language referred to by plaintiffs is directed at CPTs and PCBs which are sold to unrelated purchasers as individual components for replacements or for assembly with American made components. In the questionnaires issued by Commerce to importers and producers, plaintiffs claim the scope of the investigations included only color television receivers, complete or incomplete, as provided in the TSUS item numbers 685.11 and 685.14, and that the following definition of \"incomplete television receiver” in the questionnaires utilized by the ITC during the investigation explicitly excluded separate imports of CPTs and PCBs: Assemblies * * * which consist at least of, or are covered in the same import entry with, a color picture tube and a printed circuit board or ceramic substrate, with components assembled thereon, designed to perform the intermediate frequency amplification functions or the picture and audio demodulation functions of a color television receiver, all the foregoing provided for in TSUS item 685.14. Samsung Memorandum at 19-20 (quoting Importers’ Questionnaire at 4; Producers’ Questionnaire at 5); See also Gold Star Brief at 17-18; P.R. Doc 12 at 22 (emphasis supplied by plaintiffs Samsung). But the passage is written in the disjunctive, thus yielding the following interpretation for the merchandise covered: \"Assemblies [subject to the scope of the investigations are those] which consist at least of * * * a color picture tube [CPT] and a printed circuit board [PCB] * * Id. Plaintiffs also state that Commerce’s decision was not based on substantial evidence since the administrative record contained only nineteen documents and lacked other relevant material, i.e., the petition, the record of the initial investigations, and the injury and LTFV determinations. Samsung Memorandum at 33-34. The Court finds that the record was adequate to support the conclusion reached by Commerce; it contained the relevant excerpts from and references to the proceedings which Commerce used to determine the scope of the CTV Order. The evidence was within what a \"reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229. Conclusion The Court" }, { "docid": "4933500", "title": "", "text": "requested the ITA to make a determination with respect to Kyowaglas-XA. On July 29, 1983, the ITA published a notice of its final results, determining that “KYOWAGLAS-XA is an acrylic sheet and is, therefore, subject to the finding.” The Department of Commerce stated: The Department’s primary bases for determining whether a product is outside the scope of an antidumping finding are the descriptions of the product contained in the petition, the initial investigation, and the ITC, Treasury, or Commerce determinations. When there is vagueness in the description of a product and the Department cannot make a determination concerning the scope of a finding or order based upon the information mentioned above, we use four additional criteria to make the determination on the scope. These criteria are: (1) Physical characteristics of the merchandise; (2) the uses for which the merchandise is imported; (3) the expectation of the ultimate purchasers; and (4) the channels of trade in which the merchandise moves. In this instance the Department did not need to resort to the four additional criteria to make a determination. We reviewed the petition, the initial investigation, and the ITC’s determination, and we find that acrylic sheet, that is clear and/or translucent, regardless of optical clarity, is included within the scope of the finding. 48 Fed.Reg. 34490 (1983). The plaintiff commenced the instant action by the filing of a summons and complaint on August 26, 1983. By order of the court dated December 22, 1983, the Rohm and Haas Company became an intervenor in this action. It is undisputed that in a § 1675(a) review proceeding the ITA may clarify the scope of a prior dumping finding. Clarification of a dumping finding, however, must be distinguished from an attempt to modify or change the original finding. Royal Business Machines v. United States, 1 CIT 80, 86-87, 507 F.Supp. 1007,1013-14 (1980), aff'd, 69 CCPA —, 669 F.2d 692 (1982); Diversified Products Corp. v. United States, 572 F.Supp. 883, 6 CIT — (1983). In determining the scope of an antidumping finding, the ITA has recognized and employed certain criteria in ascertaining whether an imported" }, { "docid": "22356374", "title": "", "text": "is within the class or kind of merchandise described in an existing finding of dumping or anti-dumping or countervailing duty order” may be contested under section 1516a(a)(2)(A)). The Court of International Trade reversed, on the basis that substantial evidence did not support the ITA’s ruling. Smith Corona Corp. v. United States, 678 F.Supp. 285 (Ct.Int’l Trade 1987). The ITA held, after a second remand from the court, that PETs with text memory were included in the antidumping order. Portable Electric Typewriters from Japan, No. 88-127 (Dep’t Comm. Nov. 23, 1988). On appeal from this holding the Court of International Trade affirmed the ITA’s ruling, but refused to require the suspension of liquidation pending appeal to this court. Smith Corona, 706 F.Supp. 908. This appeal and cross-appeal followed. I The appellant producers and importers assert that PETs with text memory are outside the scope of the final antidumping duty order of 1980. A The class or kind of merchandise encompassed by a final antidumping order is determined by the order, which is interpreted with the aid of the antidumping petition, the factual findings and legal conclusions adduced from the administrative investigations, and the preliminary order. Alsthom Atlantique v. United States, 4 Fed.Cir. (T) 71, 787 F.2d 565 (Fed.Cir.1986); see generally Royal Business Machs. Inc. v. United States, 507 F.Supp. 1007 (Ct.Int’l Trade 1980), aff'd, 669 F.2d 692 (CCPA 1982). Although the scope of a final order may be clarified, it can not be changed in a way contrary to its terms. See Alsthom Atlantique, 787 F.2d at 571, 4 Fed.Cir. (T) at 78. The antidumping petition filed by Smith Corona in 1979, in accordance with 19 C.F.R. § 153.27(a)(2) (1979), defined the goods as “all portable electric typewriters, whether utilizing typebars or single elements, and whether fully electric with powered carriage return, and whether with conventional ribbons or with cartridge or cassette ribbon.” The tariff classification was identified as TSUS item 676.0510. Schedule 6, Part 4, Subpart G, of the TSUS contains the following classification: At the time of the investigation all imported portable electric typewriters were encompassed by TSUS 676.0510." }, { "docid": "4780366", "title": "", "text": "Opinion Tsoucalas, Judge: This consolidated action is before the Court on plaintiffs’ (Gold Star Co. Ltd., et al., and Samsung Electronics Co., Ltd., et al.) (hereinafter \"Gold Star” and \"Samsung” respectively) motion for summary judgment on the administrative record pursuant to Rule 56.1 of the Rules of this Court. Plaintiffs challenge the legality of the Department of Commerce, International Trade Administration’s (\"ITA” or \"Commerce”) scope clarification ruling. Public Record Documents 13, 15. (hereinafter \"P.R. Doc.-.”). The ruling included separately imported color picture tubes (\"CPTs”) and printed circuit boards (\"PCBs”), when subsequently assembled together, within the scope of the antidumping duty order concerning Color Television Receivers from Korea, 49 Fed. Reg. 18,336 (Dep’t Comm. 1984) (antidumping duty order) (hereinafter \"CTV Order”). Defendants oppose plaintiffs’ motion contending that Commerce based its decision upon substantial evidence in the record and did nothing more than lawfully clarify the scope of the existing CTV Order. Background Commerce and the United States International Trade Commission (\"ITC”), in separate investigations, determined that color television receivers from Korea were being sold at less than fair value and were materially injuring a United States industry. 49 Fed. Reg. 18,336-37. On June 1, 1984, Samsung submitted a letter to Commerce requesting a binding determination as to the applicability of the CTV Order to the importation of certain television components and subassemblies. P.R. Doc. 1. On January 9, 1986, Commerce directed Customs officials to suspend liquidation of, but not collect cash deposits on, printed circuit boards and color picture tubes pending resolution of whether those items were covered by the CTV Order. See P.R. Docs. 13-15. Commerce subsequently notified the interested parties on January 23, 1986 of the suspension of liquidation and afforded the parties an opportunity to respond via comments submitted by February 5, 1986 on any matters they wished considered. See P.R. Doc. 2. Plaintiffs and intervenors filed timely comments. Commerce determined it had sufficient information and the authority to clarify the CTV Order based on the comments it had received from the interested parties. The comments submitted to Commerce contained the relevant excerpts from and references to documents" }, { "docid": "4780379", "title": "", "text": "Questionnaire at 5); See also Gold Star Brief at 17-18; P.R. Doc 12 at 22 (emphasis supplied by plaintiffs Samsung). But the passage is written in the disjunctive, thus yielding the following interpretation for the merchandise covered: \"Assemblies [subject to the scope of the investigations are those] which consist at least of * * * a color picture tube [CPT] and a printed circuit board [PCB] * * Id. Plaintiffs also state that Commerce’s decision was not based on substantial evidence since the administrative record contained only nineteen documents and lacked other relevant material, i.e., the petition, the record of the initial investigations, and the injury and LTFV determinations. Samsung Memorandum at 33-34. The Court finds that the record was adequate to support the conclusion reached by Commerce; it contained the relevant excerpts from and references to the proceedings which Commerce used to determine the scope of the CTV Order. The evidence was within what a \"reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229. Conclusion The Court denies plaintiffs’ motion for summary judgment on the administrative record and finds in favor of the defendants. The scope clarification letter issued by Commerce is held to be a proper clarification of the CTV Order and based on substantial evidence. Therefore, merchandise consisting of CPTs and PCBs imported from Korea, when subsequently assembled together to form color television receivers, is included within the scope of the CTV Order. The contents of a printed circuit board are described in P.R. Docs. 2,14. See P.R. Doc. 13 at 1; P.R. Doc. 5 at 7-8 (the ITC’s description of products subject to the investigation, Color Television Receivers From the Republic of Korea and Taiwan, USITC Pub. 1514, Inv. Nos. 731-TA-134, -135 (Final) at A-2, A-3 (April 1984)); P.R. Doc. 7 at 4 (49 Fed. Reg. 50,420 (Dep’t Comm. 1984) (final results of administrative review); 49 Fed. Reg. 18,336 (Dep’t Comm. 1984) (final antidumping duty order); 49 Fed. Reg. 7620 (Dep’t Comm. 1984) (final LTFV determination); 48 Fed. Reg. 48,487 (Dep’t Comm. 1983) (prelim, determination)). he position adopted by" }, { "docid": "4780375", "title": "", "text": "imposition of antidumping duties by any subsequent value added to the incomplete receivers If Gold Star combines a Korean PCB with a Korean CPT, then it is an incomplete receiver as defined by Commerce. Commerce has evaluated the effect of Korean incomplete receivers on the U.S. market and found them to have materially injured U.S. industry. Therefore, the value added by Gold Star does not affect the treatment of PCBs and CPTs subsequently assembled together under the CTV Order. Plaintiffs further contend that separate importations of PCBs and CPTs were specifically excluded by the ITC and refer to the following language to support their contention: \"imported subassemblies and components for television receivers * * * are outside the scope of these investigations,” see Gold Star Brief at 13 (quoting ITC Preliminary Investigation at A-40); and \"[vjarious imported subassem-blies and components used in the manufacture of color television receivers are not subject to these investigations.” ITC Final Determination at A-3. However, Commerce was excluding from the scope of the CTV Order those PCBs and CPTs which are used as replacement parts, entering the U.S. market as PCBs or CPTs, not CTVs. Plaintiffs Samsung claim that the definition of the product adopted a \"capable of receiving a broadcast signal” standard which was embodied in the petition: The imported articles under investigation are complete and incomplete color television receivers (CTVs) imported from Taiwan and Korea. Complete receivers are fully assembled and ready to function, whereas incomplete receivers and kits consist of a color picture tube and printed circuit-board or ceramic substrate with components, which when assembled are capable of receiving a television signal. ITC Final Determination at 3-4; see also Samsung Memorandum at 20 (emphasis added). Samsung claims its merchandise, even if it had been imported together, was incapable of receiving a broadcast signal and therefore outside the scope of the CTV Order. Samsung, however, in describing its operations in the U.S., clearly indicated that its operation fell under the assembly in U.S. production facilities terminology utilized by the ITC in defining the scope of the investigation. See C.R. Doc. 4. Moreover, the" }, { "docid": "4780370", "title": "", "text": "Diversified Products Corp. v. United States, 6 CIT 155, 159, 572 F. Supp. 883, 887 (1983). However, while the ITA may clarify the dumping determination, it does not have the authority to change or modify the original determination. Alsthom Atlantique v. United States, 4 Fed. Cir. (T) 71, 78, 787 F.2d 565, 571 (1986): Kyowa Gas Chemical Industry Co. v. United States 7 CIT 138, 140, 582 F. Supp. 887, 889 (1984); Royal Business Machines, Inc. v. United States, 1 CIT 80, 86-87, 507 F. Supp. 1007, 1013 (1980), aff’d, 69 CCPA 61, 669 P.2d 692 (1982). To determine whether Commerce’s scope letter is a proper clarification of the CTV Order, the Court must examine each stage of the statutory proceedings: the final order must express the result of the previous determinations without alterations and neither the Commerce Department, as the administering authority, nor the Customs Service, by exercise of its classification authority, could legally change the results of the less than fair value and injury determinations or modify the facts or legal conclusions on which those determinations depended. Royal Business Machines, 1 CIT at 86-87, 507 F. Supp. at 1013. At each stage of the investigatory proceedings, the importations subject to antidumping duties were defined as \"color television receivers, complete or incomplete.” An incomplete receiver was characterized in the ITC investigations as: \"a color picture tube [CPT] and a printed circuit board [PCB] or ceramic substrates with components assembled thereon * * *.” P.R. Doc. 7 at 5 (citing Color Television Receivers From the Republic of Korea and Taiwan, USITC Pub. 1514, Inv. Nos. 731-TA-134, -135 (Final) at A-2 to A-3 (April 1984) (hereinafter \"ITC Final Determination”)). Plaintiffs, however, contend that the class or kind of merchandise subject to the CTV Order does not include separately imported sub-assemblies and components such as PCBs and CPTs. Gold Star’s Brief in Support of Motion for Judgment on the Agency Record (corrected public version) at 50-51 (hereinafter \"Gold Star Brief at-.”); Plaintiffs’ Samsung Memorandum in Support of Their Motion for Judgment Upon the Administrative Record at 37-38 (hereinafter \",Samsung Memorandum at-.”). They" }, { "docid": "22424133", "title": "", "text": "PER CURIAM. DECISION The judgment of the United States Court of International Trade, 692 F.Supp. 1382 (1988), upholding the determination of the Department of Commerce that separately imported color picture tubes and printed circuit boards, when subsequently assembled together, are within the scope of the antidumping duty order covering complete and incomplete color television receivers from Korea, 49 Fed.Reg. 18,336 (Dep’t Comm.1984), is affirmed. OPINION Appellants Samsung and Goldstar raise an issue on appeal that was not expressly covered in the trial court’s opinion. We address it here; on all other issues we affirm on the basis of the court’s opinion, which we adopt. Appellants assert that Commerce defined the scope of its antidumping duty order by reference to specific tariff classifications. Pointing out that the classifications under which color picture tubes and printed circuit boards are dutiable are not among those enumerated, appellants argue that they are not, therefore, properly within the scope of the order. We have no reason to believe that Commerce did not intend to include items dutiable under the specified classifications within the scope of the order. Contrary to appellants’ contention, however, we likewise have no reason to believe Commerce intended to limit the order to those items. Indeed, Commerce could not have been clearer that its intention was precisely the opposite: “This investigation is intended to cover all color television receivers regardless of tariff classifications.” 49 Fed.Reg. at 18,337. In any event, it is eminently reasonable for Commerce to omit the separate classifications of tubes and boards: all parties agree that, when unassembled, these items do not constitute “color television receivers, complete or incomplete.” Id. All parties also agree that, “when assembled,” ITC Final Determination at 3-4, tubes and boards do constitute incomplete receivers. Appellants would have us read “when assembled” as “when imported assembled,” or at least “when covered on the same import entry,” thus confining the temporal ambit of the word “when” to the moment of importation. But this construction artificially restricts the plain meaning. In classification cases a higher duty can be imposed where the importer’s intention is to combine two" } ]

[ { "docid": "950015", "title": "", "text": "rendered a final judgment. See 28 U.S.C. § 144. It is moot and frivolous because Judge Black did not decide her case. B. Improper Transfer and Subject-Matter Jurisdiction. Next Ms. Weber contends, in essence, that the Gibson court lacked jurisdiction because a venue statute or local rule was violated in assigning the case' there. Neither statute nor rule is jurisdictional. The FOIA places jurisdiction in the judicial district where complainant resides, not to particular courts within that district. 5 U.S.C. § 552(a)(4)(B). Any district court in the Southern District of Texas would have had jurisdiction to hear the complaints and proper venue under 28 U.S.C. § 1391(e)(4) or § 1404. Ms. Weber misconstrues section 1404. That section clearly provides that, for the convenience of parties and in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Ms. Weber’s action might have been brought in the Galveston Division. Moreover, the district court has wide discretion to determine whether to transfer for the convenience of parties and in the interest of justice. Bearden v. United States, 320 F.2d 99, 101 (5th Cir. 1963), cert. denied, 376 U.S. 922, 84 S.Ct. 679, 11 L.Ed.2d 616 (1964). Our review discerns no abuse of discretion. Finally, Ms. Weber’s voluntary appearance in the action waives the defects, if any, as to venue. Murphy v. Travelers Insurance Co., 534 F.2d 1155, 1159 (5th Cir. 1976). Although she protested the venue change in general terms when she appeared before the court, she concluded by stating, “I don’t really oppose the venue because I would like to have a hearing in this case.” She was granted a hearing forthwith. C. Attorney’s Fees. Ms. Weber argues that her claim is still pending because Judge Gibson failed to adjudicate her claim for attorney fees. She is mistaken; these were necessarily denied when the court dismissed her action and taxed its costs against her and when the court denied her motion for a hearing on that express subject and others by order of June 12, 1980. Such" } ]

[ { "docid": "7084079", "title": "", "text": "In a similar vein, Crescent has moved, as an alternative to dismissal, for transfer of this action to the United States District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 1404(a) (1976). Section 1404(a) provides that [f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. This provision allows for transfer from a proper venue to a more convenient venue. As with the doctrine of forum non conve-niens, when considering a motion to transfer pursuant to section 1404(a), the plaintiff’s choice of forum is generally “highly esteemed” and entitled to great weight, particularly when his choice of forum is his own home state, as in the present case. Paul v. International Precious Metals Corp., 613 F.Supp. 174, 178-79 (S.D.Miss.1985) (citing Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966)). Another significant factor is the convenience of both party and nonparty witnesses. Sorrels Steel Co., Inc. v. Great Southwest Corp., 651 F.Supp. 623, 624 (S.D.Miss.1986). When considering the relative convenience of the witnesses proposed to be called by both Crescent and Rippy, the court finds that while a trial in this forum may be somewhat more onerous for Crescent’s witnesses simply because of a slightly greater distance from their residence in and around Westwego, Louisiana, the burden on them is not significantly greater than that which would be placed on plaintiff and his witnesses should the trial be conducted in the Eastern District of Louisiana. Defendant contends that transfer should be ordered due to the potential disruption of its business operations by requiring three or four key employees to appear for trial in the Southern District of Mississippi. Though this is of course a factor to be considered, the court finds that it does not, on balance, dictate the granting of defendant’s transfer motion. Finally, the court notes defendant’s further argument that the interests of justice would be served by allowing transfer to Louisiana such that a Louisiana federal judge with greater familiarity" }, { "docid": "12685216", "title": "", "text": "STEEL, District Judge. Upon motion of the defendant pursuant to 28 U.S.C.A. § 1404(a), it was held, by oral opinion dated January 15, 1963, that the action should be transferred to the United States District Court for the Eastern District of Louisiana, New Orleans Division. Plaintiff moved for reargument and called to the attention of the Court certain authorities and statutes said to establish that the New Orleans Division was not a division in which the action could have been brought, a condition which § 1404(a) makes indispensable to a transfer. Reargument was granted; and the question was subsequently briefed and argued. Plaintiff is a New York corporation and defendant is a Delaware corporation. The causes of action sued upon are based upon alleged (i) breaches of a contract under which defendant agreed to sell and plaintiff agreed to buy scrap iron and equipment, and (ii) conversions by defendant of property acquired by the plaintiff in connection with performance of the contract. Federal jurisdiction exists in any district court solely by reason of diversity of citizenship of the parties and the allegation that the matter in controversy exceeds $10,000, exclusive of interest and costs. 28 U.S.C. § 1332(a) (1). Federal venue is controlled by 28 U.S.C. § 1391(a) (c) and § 1393(a). Section 1391(a) provides that suit may be brought only in the judicial district where all plaintiffs or defendants reside. Section 1391(c) states that a corporation may be sued in the district in which it is (a) incorporated, or (b) licensed to do business, or (c) is doing business, and that such district shall be regarded as its residence for purposes of venue. Section 1393(a) provides that when there is only one defendant and a district contains more than one division, the action must be brought in the division where the defendant resides. The defendant was neither incorporated nor licensed to do business in Louisiana. Whether it is “doing business” in the New Orleans Division is the critical venue question. Venue, having been fixed by federal law, must be determined by federal law. Murphree v. Mississippi Pub. Corp., 149" }, { "docid": "7083123", "title": "", "text": "this ground is denied. III. Motion for Change of Venue Pursuant to 28 U.S.C. § 1404(a) In the alternative, defendants request that this action be transferred to the United States District Court for the Central District of California. Defendants’ Motion at 1. 28 U.S.C. § 1404 provides in part: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. § 1404(a). The party moving to transfer the action has the burden of establishing that the action should be transferred. Genden v. Merrill Lynch, Pierce, Fenner & Smith, 621 F.Supp. 780, 782 (N.D.Ill.1985). The movant must establish that (1) venue is proper in the transferor district, (2) the transferee court is in a district where the case might have been brought, and (3) the transfer is for the convenience of the parties and witnesses and in the interest of justice. Ratner v. Hecht, 621 F.Supp. 378, 381 (N.D.Ill.1985). Plaintiffs’ choice of forum is a factor to be balanced in the determination of convenience. Id. at 382. Movant must show a “clear balance of inconvenience” in this district, as compared to the transferee district. Id. The procedural requirements appear to be satisfied in this case. Venue is proper in this district because all defendants reside in this district. 28 U.S.C. § 1391(a). This case may have been brought originally in the District Court for the Central District of California; the court would have subject matter jurisdiction based upon diversity of citizenship. Presuming that all plaintiffs reside in the Central District of California, venue would be proper in that district. 28 U.S.C. § 1391(a). Notwithstanding the foregoing, however, defendants have not demonstrated a clear balance of inconvenience in this district. Defendant Continental is a New Hampshire corporation licensed to do business in Illinois; defendant National Ben is an Illinois corporation with its principal place of business in Illinois. Id. at ¶¶ 8, 4. This action arises in connection with an insurance contract entered into in Illinois, presumably between defendants" }, { "docid": "14456723", "title": "", "text": "court does not need to determine that personal jurisdiction over the defendant and third-party defendants exists in this court before this case can be transferred. Cote v. Wadel, 796 F.2d 981, 984-85 (7th Cir.1986). Neff’s motion to dismiss for lack of personal jurisdiction need not be reached, therefore, before the transfer issue is resolved and indeed, Neffs motion will be mooted by transferring this case to the Southern District of Ohio (Neff concedes that the Southern District of Ohio has personal jurisdiction). Having determined that the prerequisites for the transferor court have been met, the court will now consider whether the transferee court prerequisites have been met; that is, whether this action is one which “might have been brought” in the Southern District of Ohio. See 28 U.S.C. § 1404(a) (1982). The phrase “might have been brought” requires that the proposed transferee court have subject matter jurisdiction, that venue would be proper there, and that the defendants be amenable to service of process issued by the transferee court. See Horwitz v. Southwest Forest Industries, Inc., 612 F.Supp. 179, 181 (D.C.Nev.1985); Wright and Miller, § 3845, pp. 340-47. Subject matter jurisdiction exists by virtue of diversity (see 28 U.S.C. § 1332 (1982)), and venue is proper in the Dayton Division of the Southern District of Ohio since the defendant and third-party defendants all reside there (see 28 U.S.C. § 1391(a) (1982)). Both the defendant and the third-party defendants are amenable to service of process by the transferee court. See Fed.R.Civ.P. 4(f). All of the prerequisites which relate to the transferee court have been met. The court may now go on to consider the factors relating to transfer. B. Factors Relating to Transfer In deciding a motion to transfer, the district court must consider the statutory factors in light of all the circumstances of the case. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.1986). While this court is limited to the three factors outlined in § 1404(a) (viz., the convenience of the parties, the convenience of the witnesses, and the interests of justice), id. at 219, these factors" }, { "docid": "10117748", "title": "", "text": "district court of New York it seeks to transfer venue. See Response at 14. Resource Associates assumes that Southampton Union is asking the Court to transfer venue to the Eastern District of New York, which covers Southampton Union’s location on Long Island. See Response .at. 14. In its Reply, Southampton Union confirms that it is asking the Court to transfer these proceedings to the Eastern District of New York pursuant to 28 U.S.C. § 1404(a). See Reply at 8. Transfer of cases is authorized by 28 U.S.C. § 1404(a), which states in part: “For the convenience of the parties and witnesses, in the interest of .justice, a dis trict court may transfer any civil action to any other district or division where it might have been brought 28 U.S.C. § 1404(a). The intent of § 1404(a) is to “place discretion in the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.’ ” Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d at 1516. First, the parties do not dispute that the Eastern District of New York is a district where this action “might have been brought.” 28 U.S.C. § 1404(a). Under 28 U.S.C. § 1391(b), venue would be proper in the Eastern District of New York, because it is “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.” 28 U.S.C. § 1391(b)(1). Southampton Union is the only defendant in this case, and it “resides” in the Eastern District of New York, because it “is subject to the court’s personal jurisdiction with respect to the civil action in question .... ” 28 U.S.C. § 1391(c)(2). Second, the. Court has not found any Supreme Court or Tenth Circuit decision that has addressed whether a transferor court, to effect a valid transfer under § 1404(a), must first have personal jurisdiction over the defendants. See Beh v. Ostergard, 657 F.Supp. 173, 178 (D.N.M.1987)(Conway, J.)(“Neither the United States Supreme Court nor the 10th Circuit has considered this issue.”). “The Court relies on guidance from" }, { "docid": "3030469", "title": "", "text": "independent of the wishes of the defendant, to bring the action.” Id. at 220. While this action is a removal case under 28 U.S.C. § 1441(a), it “is treated as though it had been commenced originally in the federal court.” 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3738, at 746 (1976). As the Fifth Circuit concluded in Aguacate Consolidated Mines, Inc. v. Deeprock, Inc., 566 F.2d 523, 524 (5th Cir. 1978): [R]emoved actions become subject to federal rather than state rules of procedure. Because the federal rules permit transfer, we hold that removed cases meeting the federal standards of ... § 1404(a) may also be transferred. Thus, the pertinent inquiry is whether Dove’s state court action, assuming it was oringinally filed in this Federal District Court, could have been brought in the Fed eral District Court for the Middle District of North Carolina. It appears from the pleadings and affidavit on file that Massachusetts Mutual was doing business in the Middle District of North Carolina at the time Dove’s original action was commenced. Thus, under 28 U.S.C. § 1391(c), Massachusetts Mutual was a resident of said district for purposes of venue, and, therefore, Dove’s action could have been brought there. Furthermore, since Massachusetts Mutual is incorporated and has its principal place of business in a state other than Georgia or North Carolina, diversity subject matter jurisdiction would have been proper in the purported transferee forum. Having concluded that Dove’s action could have been brought in the Middle District of North Carolina, the remaining question is whether transfer would serve the interests of justice, the convenience of the parties and the convenience of the witnesses. A primary consideration under the “interest of justice” standard is the relative ease of access to sources of proof. See Hoster v. Monongahela Steel Corp., 492 F.Supp. 1249,1254 (W.D.Okla.1980). In this regard, movant’s uncontroverted affidavit shows that all medical records and other documents relevant to this action are located in this transferee forum; moreover, all material witnesses reside in said forum. Thus, from the standpoint of a fair, expeditious and" }, { "docid": "699850", "title": "", "text": "U.S.C. § 1404(a). The preliminary question is whether the Eastern District of Louisiana is a district where this action “might have been brought.” Under either the specific venue provision for the alleged securities law violations, § 27 of the Exchange Act, 15 U.S.C. § 78aa, or the general venue provision, 28 U.S.C. § 1391(b), an action may be brought in any district in which the claims arose. Since the events surrounding plaintiffs’ allegations all took place primarily in New Orleans, the Court finds that the claims arose in the Eastern District of Louisiana. Indeed, the plaintiffs do not contend that venue is improper in the Eastern District of Louisiana. Therefore, the Court has the power to transfer this action. The remaining question is whether this Court should exercise its discretion to transfer this case. In evaluating the three statutory criteria set forth in § 1404(a), courts in this circuit apply the well settled standard enunciated in Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971), which states that: “unless the balance of convenience of the parties is strongly in favor of defendant, the plaintiffs choice of forum should prevail.” (Emphasis original.) See also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) (similar standard set forth when applying the doctrine of forum non conveniens -the precursor to § 1404(a)). Shutte established that the proponent of a § 1404(a) transfer must make an ample showing to overcome the substantial weight attributable to plaintiffs’ choice of forum. Nevertheless, when plaintiffs choose to bring suit in a district that is not at or near their place of residence, the “convenience to plaintiff[s] of litigating in [their] choice of forum is not as great as it would be were [they] litigating at or near [their] residence, [their] principal place of business, or the site of the activities at issue in the lawsuit.” Pall Corp. v. Bentley Laboratories, Inc., 523 F.Supp. 450, 452 (D.Del.1981); General Instrument Corp. v. Mostek Corp., 417 F.Supp. 821," }, { "docid": "699849", "title": "", "text": "no Delaware facilities. With respect to the eight individual defendants, six are residents of Louisiana, one is a resident of Missouri, and one is a resident of California. Two additional derivative actions seeking similar relief have been filed against Tidewater and its directors in Delaware State Chancery Court. Presently before this Court is defendants’ motion, pursuant to 28 U.S.C. § 1404(a), for an order transferring this action to the United States District Court for the Eastern District of Louisiana, which sits in New Orleans. For the reasons set forth below, the Court has determined that the convenience of the parties and witnesses, in the interests of justice, weigh strongly in favor of transferring this action to the Eastern District of Louisiana. Accordingly, defendants’ motion will be granted. I. STATUTORY REQUIREMENTS A civil action may be transferred under § 1404(a) to another district “where it might have been brought” if the court, in its discretion, determines that the transfer would be “[fjor the convenience of the parties and witnesses, [and] in the interest of justice.” 28 U.S.C. § 1404(a). The preliminary question is whether the Eastern District of Louisiana is a district where this action “might have been brought.” Under either the specific venue provision for the alleged securities law violations, § 27 of the Exchange Act, 15 U.S.C. § 78aa, or the general venue provision, 28 U.S.C. § 1391(b), an action may be brought in any district in which the claims arose. Since the events surrounding plaintiffs’ allegations all took place primarily in New Orleans, the Court finds that the claims arose in the Eastern District of Louisiana. Indeed, the plaintiffs do not contend that venue is improper in the Eastern District of Louisiana. Therefore, the Court has the power to transfer this action. The remaining question is whether this Court should exercise its discretion to transfer this case. In evaluating the three statutory criteria set forth in § 1404(a), courts in this circuit apply the well settled standard enunciated in Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871," }, { "docid": "6768522", "title": "", "text": "interstate fraud. Rose v. Franchetti, 713 F.Supp. 1203, 1213 (N.D.Ill.1989). This Court’s exercise of personal jurisdiction comports with both constitutional due process and the Illinois long-arm statute. Accordingly, the defendants’ motion to dismiss for lack of personal jurisdiction is denied. B. TRANSFER The defendants have moved in the alternative, to transfer this action to the Northern District of Texas pursuant to 28 U.S.C. section 1404(a), which provides: For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Thus, transfer is appropriate under section 1404(a) where the moving party establishes: 1) that venue in the transferor court is proper; 2) that jurisdiction and venue in the transferee court are proper; and 3) that the transfer will serve the convenience of the parties and witnesses and will promote the interests of justice. See Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.1986). The weight to be accorded each factor is in the sound discretion of the trial judge. Id. 1. Venue in this District Jurisdiction in this civil action is based on diversity of citizenship alone. Therefore, venue is proper where all the plaintiffs reside, where all the defendants reside, or where the claim arose. 28 U.S.C. § 1391(a). The plaintiff resides in this district and therefore, venue in this court is proper. 2. Jurisdiction and Venue in the Transferee District Section 1404(a) also requires that the transferee court would have had both jurisdiction and venue had the claim been originally brought there by the plaintiff. Hoffman v. Blaski, 363 U.S. 335, 343-44, 80 S.Ct. 1084, 1089-90, 4 L.Ed.2d 1254 (1960); Kinney v. Anchorlock Corp., 736 F.Supp. 818, 822, fn.4 (N.D.Ill.1990). Personal jurisdiction in the Northern District of Texas is only questionable as to Jones, because he is the only defendant who does not reside there. This court concludes, however, that the Texas court’s exercise of jurisdiction over Jones would be neither unreasonable nor unforeseeable because he knowingly made himself a part of this transaction and" }, { "docid": "955957", "title": "", "text": "change of venue of this action pursuant to 28 U.S.C. § 1404(a), which provides that: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Under this section, a threshold consideration is whether the action “might have been brought” in the proposed transferee district court. Continental Grain Co. v. F.B.L.-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960). An action “might have been brought” in a proposed transferee court if (1) the court has jurisdiction over the subject matter of the action, (2) venue is proper there, and (3) the defendant is amenable to process issuing out of the transferee court. 1 Moore’s Federal Practice, ¶ 0.145[6.-1] at 1636 (1980). These criteria are satisfied in this case. The district court in New Hampshire would have jurisdiction of a diversity action (since the parties are citizens of different states, 28 U.S.C. § 1332(a)(1), the defendant being currently a resident of New Hampshire), venue would be proper since defendant lives within that district, 28 U.S.C. § 1391(a), and defendant acknowledges that he would be subject to process in that district. This Court must now determine whether a transfer is justified under the balance of the language of § 1404(a), that is, for “the convenience of parties and witnesses” and “in the interest of justice.” The power of a court to transfer pursuant to § 1404(a) has its roots in the doctrine of forum non conveniens. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court outlined the factors to be evaluated in determining whether forum non conveniens should apply in a particular case: An interest to be considered and the one most likely to be most pressed, is the private interest of the litigant. Important considerations are the relative case of access to proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would" }, { "docid": "11714596", "title": "", "text": "firm and Silvestri & Massicot was “Of Counsel” to the Sacks firm. These facts illustrate the professional relationship between the defendants regarding the personal injury claim. In contrast, the Eastern District of Louisiana is where Manuel Santos’s personal injury claim was filed and where the most significant acts giving rise to the malpractice claim occurred. The Court finds that this district has more substantial contacts to the lawsuit than does the Eastern District of Pennsylvania and, accordingly, will accept the ruling of the transferor court. B. WHETHER THIS COURT SHOULD TRANSFER THIS ACTION TO THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA Title 28, United States Code, Section 1404(a) provides: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. Before an action can be transferred under this statute, the transferee court must have personal jurisdiction over all parties and venue must be proper in that district. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3828; Cooper v. Valley Line Company, 320 F.Supp. 483 (W.D.Pa.1970). In order to pass upon plaintiffs’ motion to transfer, the Court requested affidavits regarding the contacts that John Massicot and Silvestri & Massicot (the Mas-sicot defendants) have with Florida. After carefully evaluating all of the relevant facts and the applicable law, the Court concludes that the requirements of 28 U.S. C. § 1404(a) are not satisfied because the Massicot defendants are not subject to personal jurisdiction in Florida. A federal district court in a diversity action may assert personal jurisdiction over a nonresident defendant only to the extent permitted by the laws of the forum. Mack Trucks v. Arrow Aluminum Castings Co., 510 F.2d 1029,1031 (5th Cir.1975); Arrowsmith v. United Press International, 320 F.2d 219, 222 (2nd Cir.1963). However, “regardless of the breadth of the state statute, the exercise of jurisdiction over a defendant must comport with the ... due process clause of the fourteenth amendment.” Gold Kist, Inc. v. Baskin-Robbins Ice Cream, 623 F.2d 375, 377 (5th" }, { "docid": "9429640", "title": "", "text": "weeks of leave necessary to attain the 12 workweeks of leave required under this sub-chapter may be provided without compensation.” 29 U.S.C. § 2612(d)(1). Where an employer provides paid leave, an employee may elect, or an employer may require, that an employee use his or her paid leave for all or part of the 12 weeks of leave. 29 U.S.C. § 2612(d)(2)(A). Moreover, an employer who violates the FMLA shall be liable for damages equal to “any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation.” 29 U.S.U § 2617(a)(l)(A)(i)(I). Therefore, Defendants’ motion to dismiss the complaint will be denied. B. Motion to Transfer Federal law provides that “[f|or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). In ruling on a motion brought pursuant to 28 U.S.C. § 1404(a), a court must first determine whether venue is proper in the proposed transferee court and whether the defendants are subject to personal jurisdiction in the transferee forum. Volkswagen De Mexico v. Gemmischer Lloyd, 768 F.Supp. 1023 (S.D.N.Y.1991). The federal venue statute provides that in a civil action where jurisdiction is not based solely on diversity, venue is proper in a judicial district where any defendant resides, a judicial district where a substantial part of the acts or omissions giving rise to the lawsuit occurred, or, if neither of the first two are possible, then in a judicial district in which any of the defendants may be found. 28 U.S.C. § 1391(b). In the instant case, all of the Defendants reside in the State of New York, so venue is proper in any district in New York where any of the Defendants reside. Cybex and LMPI “reside” in Bayshore which is located in the Eastern District of New York because that is where them headquarters are located. 28 U.S.C. § 1391(c). Moreover, a substantial part of the events giving rise to the lawsuit occurred at these" }, { "docid": "23291885", "title": "", "text": "part of the insurance adjusters; indeed, the record shows that they made a settlement offer after Kentucky’s one year statute expired and before the action was filed. IV Accordingly, the decision of the district court is vacated. The case is remanded for further proceedings not inconsistent with this decision. . Ft. Campbell is in that district. . 28 U.S.C. § 1404(a) states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” . 28 U.S.C. § 1406(a) states: “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” . In this case, in determining that the statute of limitations of the transferee state, Kentucky, rather than the transferor state, Georgia, should be applied, where the Georgia federal district court did not have in personam jurisdiction as to defendants, this court did rely in part on the fact that plaintiff had sought the transfer, but it also is clear from the opinion that the court was persuaded by the fact that defendants were not effectively before the court in Georgia. The court pointed out that to allow plaintiffs to have the benefit of the laws of the state in which the action was filed but which had no jurisdiction would encourage forum-shopping. . Since Martin resided in the Western District of Virginia, venue was proper there. 28 U.S.C. § 1391. As will be seen, the problem here is that in personam jurisdiction was probably lacking. . In Aguacate Consolidated Mines, Inc. v. Deeprock, Inc., 566 F.2d 523 (5th Cir. 1978), the Fifth Circuit held that the transfer of such action may be permitted under either § 1404(a) or § 1406(a), implicitly assuming that the transfer provisions overlap in this particular area. . In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67" }, { "docid": "407057", "title": "", "text": "may enter tain a motion to transfer if there exists a better forum for the resolution of the dispute between the parties. See Martin v. Stokes, 623 F.2d 469, 474 (6th Cir.1980) (“the application of § 1404(a) [is limited] to the transfer of actions commenced in a district court where both personal jurisdiction and venue are proper”); Great Lakes Bancorp v. Holbrock, No. 95-CV-72666-DT, 1996 WL 426439, at * 5 (E.D.Mich. Feb.29,1996). A. Standard for Transfer to a More Convenient Forum Defendants contend that transfer of venue to the Western District of Missouri is appropriate pursuant to 28 U.S.C. § 1404(a), which provides, “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The threshold consideration under § 1404(a) is whether venue would be proper in the United States District Court for the Western District of Missouri. An action “might have been brought” in a transferee court if: a. The court has jurisdiction over the subject matter of the action b. Venue is proper there, and c. The defendant is amenable to process issuing out of the transferee court. Continental Grain Co. v. Barge F.B.L.-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960); Neff Athletic Lettering Co. v. Walters, 524 F.Supp. 268, 271 (S.D.Ohio 1981). There is no dispute that plaintiff could have brought this action in the Western District of Missouri because both defendants reside in that district and because the business relationship between plaintiff and defendants originated there. Once it is determined that the case “could have been brought” in the transferee court, the factors to be considered under § 1404(a) are similar to those weighed by courts in determining forum non conveniens motions; however, transfers pursuant to § 1404(a) may be granted “upon a lesser showing of inconvenience.” Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955). The plaintiffs choice of forum is to be given considerable weight. See Hanning v. New England Mutual Life Ins. Co., 710" }, { "docid": "23459352", "title": "", "text": "City of Chicago Heights, supra, 883 F.2d at 579. Jurisdiction in this civil action is based on diversity of citizenship alone. The applicable provision for determining venue in this case is 28 U.S.C. § 1391(a)(2), which provides that, in diversity actions, venue is proper in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U.S.C. § 1391(a)(2). The present action arises from an alleged partnership agreement that was negotiated, consummated, and modified during the course of meetings taking place in Chicago. Accordingly, venue is proper in the Northern District of Illinois notwithstanding the possibility that Mr. Christoph’s activities may have been more substantial elsewhere. See, e.g., AMPAC Group Inc. v. Republic of Honduras, 797 F.Supp. 973, 979 (S.D.Fla.1992), aff'd., 40 F.3d 389 (11th Cir.1994); Translinear, Inc. v. Republic of Haiti, 538 F.Supp. 141, 144-45 (D.D.C.1982). “If the selected district’s contacts are ‘substantial,’ it should make no difference that another’s are more so, or the most so.” Merchants National Bank v. SafraBank (California), 776 F.Supp. 538, 541 (D.Kan.1991) (quoting Siegel, Commentary on 1990 Revision of Subdivisions (a), (b) and (e), 28 U.S.C.A. § 1391 (1991)). Since this action was brought in a proper judicial district, transfer or dismissal under Section 1406(a) is inappropriate. III. Section 1404 Transfer In the alternative, defendants move to transfer venue to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a), which provides: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. § 1404(a). Transfer is appropriate under Section 1404(a) where the moving party demonstrates that (1) venue is proper in the transferor district, (2) venue and jurisdiction are proper in the transferee district, and (3) the transfer will serve the convenience of the parties, the convenience of the witnesses, and the interest of justice. Habitat Wallpaper and Blinds, Inc. v. K.T. Scott Limited" }, { "docid": "4460953", "title": "", "text": "wit> nesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. The decision to transfer lies within the sound discretion of the trial judge. Houston Fearless Corp. v. Teter, 318 F.2d 822 (10th Cir. 1963); Wm. A. Smith Contracting Co. v. Travelers Indemnity Co., 467 F.2d 662 (10th Cir. 1972). The moving party has the burden of proving that the suit should be transferred, and must establish that the balance weighs strongly in favor of the proposed transferee-district. Wm. A. Smith, supra, at 664; Houston, supra, at 827-828. A 1404(a) motion to change venue is analyzed and determined by a two-step process. First, assuming that venue is proper in the transferor-court, the court must have the power to transfer the case. 1404(a) requires that the proposed transferee-court be a district “where it might have been brought.” If the original and proposed districts are found to be proper, the second step under 1404(a) is to determine that the transfer is for the “convenience of parties and witnesses, in the interest of justice.” I. VENUE GENERALLY In a diversity action, proper jurisdiction under 28 U.S.C. § 1391(a) lies only in those judicial districts where all plaintiffs or all defendants reside, or where the claim arose. Applied to the facts in this case, venue would be proper in either the Northern District of Illinois (where the plaintiff resides) or the Western District of Michigan (where the defendant resides and where the injury occurred). In addition, the proposed transferee-court will be proper only if it has jurisdiction over the subject matter of the case. In this situation, the basis is diversity of citizenship. The last element necessary for transfer is that the defendant must be amenable to process issued by the transferee-court (personal jurisdiction). See American Telephone & Telegraph Company v. Milgo Electronic Corporation, 428 F.Supp. 50 (S.D.N.Y.1977). The defendant in this action, being a resident of Michigan, is amenable to process. Since the case could have been brought originally in either the transferor or transferee district, this" }, { "docid": "827708", "title": "", "text": "store, the Court finds that AMM’s principal place of business is Illinois. B. Inter-District Transfer 28 U.S.C. § 1404(a) governs change of venue and provides in pertinent part: For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. In order to meet the requirements of § 1404(a), the movant must establish “(1) that venue is proper in the transferor district; (2) that the transferor court has the power to transfer the case (that is, that the transferee court is in a district ‘where it might have been brought’); and (3) that the transfer is ‘for the convenience of the parties and witnesses in the interest of justice.’ ” Hotel Constructors, Inc. v. Seagrave Corp., 543 F.Supp. 1048, 1050 (N.D.Ill.1982). Requirements (1) and (2) are met in this case. Venue is proper in this, the transferor district, because this is the district in which all plaintiffs reside. See 28 U.S.C. § 1391(a). Moreover, this Court has the power to transfer the case. The United States District Court for the Central District of California has subject matter jurisdiction over the controversy based on diversity of citizenship. Venue is proper in that district because it is the district in which all defendants reside. See 28 U.S.C. § 1391(a). The Court now turns to requirement (3). To support a motion to transfer, the movant must show a “clear balance of inconvenience” in this district over the transferee district. Id. See also SEC v. First National Finance Corp., 392 F.Supp. 239, 240 (N.D.Ill.1975). In determining whether the movant has met this burden, the Court must accord weight to the plaintiffs’ choice of forum, and consider the convenience of the parties, the convenience of the witnesses, and the interests of justice generally. 1. Plaintiffs’ Choice of Forum Although under the common law doctrine of forum non conveniens plaintiff’s choice of forum was an overriding factor entitled to considerable weight, the significance of that choice has diminished since the enact ment of § 1404(a)." }, { "docid": "23459353", "title": "", "text": "are more so, or the most so.” Merchants National Bank v. SafraBank (California), 776 F.Supp. 538, 541 (D.Kan.1991) (quoting Siegel, Commentary on 1990 Revision of Subdivisions (a), (b) and (e), 28 U.S.C.A. § 1391 (1991)). Since this action was brought in a proper judicial district, transfer or dismissal under Section 1406(a) is inappropriate. III. Section 1404 Transfer In the alternative, defendants move to transfer venue to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a), which provides: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. § 1404(a). Transfer is appropriate under Section 1404(a) where the moving party demonstrates that (1) venue is proper in the transferor district, (2) venue and jurisdiction are proper in the transferee district, and (3) the transfer will serve the convenience of the parties, the convenience of the witnesses, and the interest of justice. Habitat Wallpaper and Blinds, Inc. v. K.T. Scott Limited Partnership, 807 F.Supp. 470, 474 (N.D.Ill. 1992) (citations omitted). Because the task of weighing factors for and against transfer “necessarily involves a large degree of subtlety and latitude,” the decision to transfer is committed to the sound discretion of the trial judge. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.1986) (citations omitted); Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir.1989) (citations omitted). The first two elements have been met in this case. First, as explained above, venue is proper in this forum. Second, jurisdiction and venue are proper in the Southern District of Florida (“Southern District”). The Southern District can exercise subject matter jurisdiction over this lawsuit based on diversity of citizenship, as well as personal jurisdiction over these resident defendants. Venue is proper under 28 U.S.C. § 1391(a) since both defendants reside in the Southern District, and the Marina, the property that is the subject of this action, is situated therein. Hence, this Court’s inquiry must focus on the third element, i.e., whether a" }, { "docid": "18742770", "title": "", "text": "Craft has been given an opportunity to respond to the arguments raised by Mr. Perry in his memorandum, and the motion is now fully briefed. Discussion Mr. Perry seeks to transfer this action to the District of Minnesota pursuant to 28 U.S.C. § 1404(a), which provides: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. § 1404(a). Transfer is appropriate under Section 1404(a) where the moving party demonstrates that (1) venue is proper in the transferor district, (2) venue and jurisdiction are proper in the transferee district, and (3) the transfer will serve the convenience of the parties, the convenience of the witnesses, and the interest of justice. Vandeveld v. Christoph, 877 F.Supp. 1160, 1167 (N.D.Ill.1995) (citation omitted). “The weighing of factors for and against transfer necessarily involves a large degree of subtlety and latitude, and, therefore, is committed to the sound discretion of the trial judge.” Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir.1986) (citations omitted). In this case, the first two elements have been easily satisfied. First, as explained in my May 22, 1995 order, venue properly lies in this forum. Second, personal jurisdiction and venue also are proper in the District of Minnesota because Mr. Perry is a Minnesota resident. See 28 U.S.C. § 1391(a)(1). Accordingly, my inquiry must focus on the third element, i.e., whether a transfer will serve the convenience of the parties, the convenience of the witnesses, and the interest of justice. A. Considerations of Convenience The party seeking a Section 1404(a) transfer bears the burden of showing that “the transferee forum is clearly more convenient” than the transferor forum. Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir.1989) (citation omitted). In deciding whether to transfer a ease pursuant to Section 1404(a), a court may consider several factors, including the plaintiffs choice of forum, the situs of material events, the convenience of the witnesses, and the convenience of the parties." }, { "docid": "3030468", "title": "", "text": "establish why there should be a change of forum.” C. Wright, A. Miller & E. Cooper, 15 Federal Practice and Procedure § 3848, at 244 (1976). Southeastern Equipment Co., Inc. v. Union Camp Corp., 498 F.Supp. 164, 165 (S.D.Ga.1980). Once plaintiff’s forum choice is placed in proper analytical perspective, a section 1404(a) motion requires resolution of two basic questions: “(1) whether the action sought to be transferred ‘might have been brought’ in the proposed transferee district; and (2) whether the transfer would be ‘[f]or the convenience of parties and witnesses, in the interest of justice.’ ” International Patent Development Corp. v. Wyomont Partners, 489 F.Supp. 226, 228 (D.Nev.1980). The statutory phrase “where [the action] might have been brought” precludes transfer to a district in which venue and subject matter jurisdiction would not have been proper in the first instance. 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3845, at 216 (1976). In sum, “[tjransfer can be had only to a district and division where plaintiff would have had a right, independent of the wishes of the defendant, to bring the action.” Id. at 220. While this action is a removal case under 28 U.S.C. § 1441(a), it “is treated as though it had been commenced originally in the federal court.” 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3738, at 746 (1976). As the Fifth Circuit concluded in Aguacate Consolidated Mines, Inc. v. Deeprock, Inc., 566 F.2d 523, 524 (5th Cir. 1978): [R]emoved actions become subject to federal rather than state rules of procedure. Because the federal rules permit transfer, we hold that removed cases meeting the federal standards of ... § 1404(a) may also be transferred. Thus, the pertinent inquiry is whether Dove’s state court action, assuming it was oringinally filed in this Federal District Court, could have been brought in the Fed eral District Court for the Middle District of North Carolina. It appears from the pleadings and affidavit on file that Massachusetts Mutual was doing business in the Middle District of North Carolina at the time Dove’s" } ]

[ { "docid": "17669716", "title": "", "text": "at 331. Accordingly, Telco and NYNEX are entitled to judgment as a matter of law on Rafferty’s misrepresentation claim. C. Rule 11 Sanctions Both parties moved for the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure. The district court denied both motions. We “apply an abuse-of-discretion standard in reviewing all aspects of a district court’s Rule 11 determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990). We find that the district court did not abuse its discretion in denying Rafferty’s motion for sanctions. The original judge denied Rafferty’s motion for sanctions based on Telco’s and NYNEX’s alleged misrepresentation of facts in their answer to his complaint but the denial was “without prejudice to its renewal, if warranted, following disposition of the summary judgment motions.” Id. Rafferty never renewed the motion. That judge also described as “frivolous, if not contemptuous” Rafferty’s motion for sanctions based on Tel-co’s and NYNEX’s alleged interference with his efforts to obtain replacement counsel. JA 639. We find no basis for concluding that Telco or NYNEX so interfered. We do find, however, that the district court erred in denying Telco’s and NYNEX’s motions for sanctions against Rafferty. “A district court ... necessarily abuse[s] its discretion if it base[s] its ruling on an erroneous view of the law.” Id. We have held that once the district court finds that a pleading is not well grounded in fact, not warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, or is interposed for any improper purpose, “Rule 11 requires that sanctions of some sort be imposed.” Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174-75 (D.C.Cir.1985) (emphasis added); see also Hilton Hotels Corp. v. Banov, 899 F.2d 40, 44 (D.C.Cir.1990) (same); Saltany v. Reagan, 886 F.2d 438, 439 (D.C.Cir.1989) (same), cert. denied, 495 U.S. 932, 110 S.Ct. 2172, 109 L.Ed.2d 501 (1990); Weil v. Markowitz, 829 F.2d 166, 171 (D.C.Cir.1987) (same). Thus, once a district court finds sanctionable conduct, it has no discretion whether to impose sanctions." } ]

[ { "docid": "5591397", "title": "", "text": "decision in Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir.1996), which the court characterized as a “frivolous legal contention.” Sanctions Order at 7; (b) counsel’s lack of judgment and skill; and (c) Ms. Hunter’s sanction by the same court eleven years earlier. Ms. Hunter has timely appealed the suspension imposed upon her, maintaining that Rule 11 sanctions are unwarranted and that her suspension from practice was an overly severe penalty. We possess jurisdiction under 28 U.S.C. § 1291. II. A. We review for abuse of discretion a district court’s imposition of Rule 11 sanctions on a practicing lawyer. Advisory Committee Notes to the 1993 Amendments, Fed.R.Civ.P. 11 (“Note, FRCP 11”); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Of course, an error of law by a district court is by definition an abuse of discretion. Hartmarx, 496 U.S. at 405, 110 S.Ct. 2447; United States v. Pearce, 191 F.3d 488, 492 (4th Cir.1999). As the Supreme Court has observed in the Rule 11 context, if a district court “reified] on a materially incorrect view of the relevant law in determining that a pleading was not ‘warranted by existing law or a good faith argument’ for changing the law,” we are justified in concluding that the district court abused its discretion. Hartmarx, 496 U.S. at 402, 110 S.Ct. 2447. B. Although Rule 11 does not specify the sanction to be imposed for any particu lar violation of its provisions, the Advisory Committee Note to the Rule’s 1993 amendments provides guidance with an illustrative list. A court may, for example, strike a document, admonish a lawyer, require the lawyer to undergo education, or refer an allegation to appropriate disciplinary authorities. Note, FRCP 11; see also Thornton v. Gen. Motors Corp., 136 F.3d 450, 455 (5th Cir.1998) (“[W]hen a district court finds that a disciplinary sanction more severe than admonition, reprimand, or censure under Rule 11 is warranted, it should refer the matter to the appropriate disciplinary authorities.”). While a reviewing court owes “substantial deference” to a district court’s decision to suspend" }, { "docid": "13908879", "title": "", "text": "other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law,” and that “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” Id. Where a pleading or motion is signed in violation of the Rule, the court may sanction the party or signatory attorney appropriately. Id. The “central purpose of Rule 11 is to deter baseless filings in district court and thus ... streamline the administration and procedure of the federal courts.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Since the 1993 amendments, the language of Rule 11 indicates that the imposition of sanctions is left to the discretion of the district court judge. See Rafferty v. NYNEX Corp., 60 F.3d 844, 852 n. 12 (D.C.Cir.1995); Fed.R.Civ.P. 11(c) (noting that when the rule has been violated, a court may impose an appropriate sanction); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1336 (2d ed. Supp.2000) (commenting that the scope of the Advisory Committee’s list of factors to consider when deciding whether or not to impose a sanction suggests that “the district court is given the widest possible latitude under the new” version of Rule 11). As possible sanctions pursuant to Rule 11, the court has an arsenal of options at its disposal, “such as striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs; ordering a fine payable to the court; [or] referring the matter to disciplinary authorities.” See Fed.R.Civ.P. 11 advisory committee’s note (1993). B. Rule 37(b)(2) Rule 37(b)(2) of the Federal Rules of Civil Procedure permits a court to issue such orders “as are just” to sanction a party who fails to obey an order to provide or permit discovery, including a discovery order under Rule 26, governing discovery generally, and Rule 35, governing orders" }, { "docid": "23578421", "title": "", "text": "that “the central purpose of Rule 11 is to deter baseless filings in the district court and ... streamline the administration and procedure of the federal courts,” Cooter & Gell, 496 U.S. at 393, 110 S.Ct. at 2464 (citation omitted), rather than “to reward parties who are victimized by litigation,” Business Guides v. Chromatic Communications Enterprises, - U.S.-, 111 S.Ct. 922, 934, 112 L.Ed.2d 1140 (1991). Rule 11 requires the imposition of sanctions whenever a violation of the Rule has occurred, even in the absence of a motion by an aggrieved party. See Fed.R.Civ.P. 11 (“If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose ... an appropriate sanction.”) (emphasis added); O’Malley v. New York City Transit Authority, 896 F.2d 704, 709 (2d Cir.1990) (same); see also Vairo, Rule 11: A Critical Analysis, 118 F.R.D. 189, 193 (1988) (same). The district court in the instant case did not consider whether sanctions were mandated under the circumstances even though Kheel’s motion alerted it to the possibility that a Rule Í1 violation had occurred upon the filing of the complaint. Although Rule 11 is mandatory on district courts, it does not necessarily follow that a non-party such as Kheel has standing to request Rule 11 sanctions and to complain about the district court’s failure to consider whether to impose them. Although the language of Rule 11 does not address the issue of who may move for sanctions, the language used in the Advisory Committee Notes indicates that it is the parties who should move for sanctions. The Advisory Committee Notes accompanying the 1983 amendments require that “[a] party seeking sanctions should give notice to the court and the offending party” and make explicit the court’s authority to impose sanctions on its own motion “in order to overcome the traditional reluctance of courts to intervene unless requested by one of the parties.” Notes of Advisory Committee on Rules-1983 Amendment (emphasis added). We believe that as a general rule only parties to an action and certain other participants have" }, { "docid": "13908878", "title": "", "text": "of fraud on this Court,” “judgment by default should be entered” in favor of Plaintiff “and attorney’s fees awarded.” Id. at 34. While Defendants simply attempt to refute Plaintiffs allegations in their filing, Mr. Goldschmidt has brought his own Motion for Sanctions against Plaintiff pursuant to Federal Rule of Civil Procedure 11(b). See Goldschmidt’s Mot. for Sanctions at 1-2; Goldschmidt’s Opp’n at 12-13. As such, before the Court can discuss the content of the cross-motions for sanctions, the Court first must set out the relevant legal standards underlying the Court’s ability to sanction a litigant or counsel in an action. A. Rule 11 Rule 11 of the Federal Rules of Civil Procedure provides that all pleadings, motions or other papers filed with the Court shall be signed by an attorney. Fed.R.Civ.P. 11. The signature affixed pursuant to Rule 11 certifies that the pleading or motion “is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,” that “the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law,” and that “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” Id. Where a pleading or motion is signed in violation of the Rule, the court may sanction the party or signatory attorney appropriately. Id. The “central purpose of Rule 11 is to deter baseless filings in district court and thus ... streamline the administration and procedure of the federal courts.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Since the 1993 amendments, the language of Rule 11 indicates that the imposition of sanctions is left to the discretion of the district court judge. See Rafferty v. NYNEX Corp., 60 F.3d 844, 852 n. 12 (D.C.Cir.1995); Fed.R.Civ.P. 11(c) (noting that when the rule has been violated, a" }, { "docid": "2683517", "title": "", "text": "constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation---- If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it ... an appropriate sanction[.] Fed.R.Civ.P. 11. The Supreme Court commented on the propriety of imposing Rule 11 sanctions in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). The Court stated that “the central purpose of Rule 11 is to deter baseless filings in District Court and thus, consistent with the Rule [sic] Enabling Act’s grant of authority, streamline the administration and procedure of the federal courts.” Id. at 393, 110 S.Ct. at 2454. The Court emphasized that an attorney who signs and submits papers to a court manifests his or her belief that the papers are “well-grounded in fact, legally tenable, and ‘not interposed for any improper purpose,’ ” and further reinforced the language of the rule by stating that “[a]n attorney who signs the paper without such a substantiated belief ‘shall’ be penalized by ‘an appropriate sanction.’ ” Id. In a 1991 decision the Supreme Court reiterated that an attorney’s signature denotes the signer’s belief in the merits of the document, and indicates that the signer has considered his or her behavior “in terms of the duty [owed] to the court system to conserve its resources and avoid unnecessary proceedings.” Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 543-46, 111 S.Ct. 922, 929-30, 112 L.Ed.2d 1140 (1991). When analyzing a Rule 11 motion, the court must focus on the question of whether" }, { "docid": "13908880", "title": "", "text": "court may impose an appropriate sanction); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1336 (2d ed. Supp.2000) (commenting that the scope of the Advisory Committee’s list of factors to consider when deciding whether or not to impose a sanction suggests that “the district court is given the widest possible latitude under the new” version of Rule 11). As possible sanctions pursuant to Rule 11, the court has an arsenal of options at its disposal, “such as striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs; ordering a fine payable to the court; [or] referring the matter to disciplinary authorities.” See Fed.R.Civ.P. 11 advisory committee’s note (1993). B. Rule 37(b)(2) Rule 37(b)(2) of the Federal Rules of Civil Procedure permits a court to issue such orders “as are just” to sanction a party who fails to obey an order to provide or permit discovery, including a discovery order under Rule 26, governing discovery generally, and Rule 35, governing orders for independent physical or mental examinations. See Fed.R.Civ.P. 37(b)(1). Such sanctions may include taking certain facts as established, prohibiting the introduction of certain evidence, striking pleadings or parts thereof, staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof and/or rendering a judgment by default against the disobedient party. See Fed.R.Civ.P. 37(b)(2); Bonds v. Dist. of Columbia, 93 F.3d 801, 807-08 (D.C.Cir.1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997); Shepherd v. Am. Broadcasting Cos., 62 F.3d 1469, 1474 (D.C.Cir.1995). The possible sanctions set out in Rule 37(b)(2) are not mutually exclusive; the court may impose several of the specified sanctions at the same time. See 8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure §§ 2284, 2289 (2d. ed.1994). The imposition of the number and type of sanctions employed under Rule 37(b)(2) is left to the discretion of the trial judge. See id. § 2284 (“With a rule as flexible as Rule 37, inevitably a broad" }, { "docid": "16231365", "title": "", "text": "from other requests for attorney fees based on the same conduct would amount to needless duplication of paper, time, and effort, for practitioners as well as the courts. This reasoning is persuasive and will be adopted here. The Debtor’s sanctions motion also seeks relief under § 1927 and § 105 but does not seek relief upon the merits. Rather than require additional time, paper and effort, all requests for relief will be considered here. The Debtor has not Proven a Violation of Rule 9011(b) Fed. R. Bankr.P. 9011 provides in pertinent part: (a) Every petition, pleading, written motion, and other paper, except a list, schedule, or statement, or amendments thereto, shall be signed by at least one attorney of record in the attorney’s individual name .... (b) Representations to the court By presenting to the court (whether by signing, filing, submitting, or later advocating) a petition, pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Fed. R. Bankr.P. 9011(b). A basic purpose of Rule 9011 is to deter baseless filings. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Sanctions may be imposed for any violation of Rule 9011(b). Sanctions may be imposed against both an attorney and the party they" }, { "docid": "20539456", "title": "", "text": "and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. Fed. R. BaNkrJP. 9011(a)-(c). Rule 9011 conforms to Fed. R.Civ.P. 11, and accordingly, “[c]ourts may look to case law interpreting Rule 11 when deciding cases under Bankruptcy Rule 9011.” In re Babcock, 258 B.R. 646, 651 (Bankr.E.D.Va.2001) (citing McGahren v. First Citizens Bank & Trust Co. (In re Weiss), 111 F.3d 1159, 1170 (4th Cir.1997)); In re Atlas Mach. & Iron Works, Inc., 190 B.R. 796, 806 (Bankr.E.D.Va.1995). The primary purpose of Rule 11 is “to deter baseless filings ... and thus, streamline the administration and procedure of the federal courts.” Cooler & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Rule 9011, like Fed.R.Civ.P. 11, “only applies to acts undertaken in a case before the court.” Davant v. Bailey (In re Bailey), No. 09-2564, Adv. No. 10-15, 2010 WL 3277908, at *2, 2010 Bankr.LEXIS 2449, at *4 (Bankr.N.D.W.Va. Aug. 13, 2010) (citing Nationwide Mut. Ins. Co. v. Burke, 897 F.2d 734, 739 (4th Cir.1990)). As evidence in support of her Motion, the Debtor cites to Beneficial’s failure to dismiss the Circuit Court case and the letter she received from Beneficial. Rule 9011 only applies to documents filed in this Court; therefore, the documents filed in State Court cannot be a basis for granting the" }, { "docid": "21353392", "title": "", "text": "demonstrating Defendants’ “history of retaliatory conduct” or suggesting that any Plaintiff is actually at risk of retributive conduct. As Count 8 therefore does not move beyond the realm of the speculative into the plausible, see Bell Atl., 127 S.Ct. at 1965, the Court concludes that it must be dismissed for failure to state a claim. F. AFGE and Concentra’s Motions for Rule 11 Sanctions Having resolved that each of Plaintiffs’ claims lacks merit and that Plaintiffs’ Amended Complaint must therefore be dismissed in its entirety, the Court turns to the motions for sanctions pursuant to Federal Rule of Civil Procedure Rule 11(c) filed by AFGE and Concentra. Rule 11 provides that in presenting to the Court a pleading, written motion, or other paper, an attorney certifies that the pleading or motion “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needless increase the cost of litigation,” that “the claims, defenses, and other legal contentions [therein] are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law,” and that “the factual contentions [therein] have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed.R.Civ.P. 11(b)(1)-(3). Where a pleading or motion is filed in violation of the Rule, the court may sanction the signatory attorney appropriately. Fed.R.Civ.P. 11(c). The “central purpose of Rule 11 is to deter baseless filings in district court and thus ... streamline the administration and procedure of the federal courts.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Since the 1993 amendments, the language of Rule 11 indicates that the imposition of sanctions is left to the discretion of the district court judge. See Raf-ferty v. NYNEX Corp., 60 F.3d 844, 852 n. 12 (D.C.Cir.1995); Fed.R.Civ.P. 11(c) (noting that when the rule has been violated, a court may impose an appropriate sanction); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1336 (2d" }, { "docid": "19900878", "title": "", "text": "A court’s decision to deny sanctions under Rule 11, 28 U.S.C. § 1927, and the court’s inherent power is reviewed for an abuse of discretion. See, e.g., Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1179 (11th Cir.2005); Baker v. Alderman, 158 F.3d 516, 521 (11th Cir.1998). A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or bases the decision “upon findings of fact that are clearly erroneous.” Cordoba, 419 F.3d at 1180 (citation omitted). III. DISCUSSION A Rule 11 “The purpose of Rule 11 is to deter baseless filings in district court and thus streamline the administration and procedure of federal courts.” 2 James Wm. Moore et al., Moore’s Federal Practice § 11.03 (3d ed.2010) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 2454, 110 L.Ed.2d 359 (1990)). When an attorney files a pleading in federal court, the attorney signs the pleading to certify that, among other things, (1) the pleading is not being presented for an improper purpose; (2) the legal contentions are warranted by existing law or a nonfrivolous argument to change existing law; and (3) the factual contentions have evidentiary support or will likely have evidentiary support after discovery. Fed. R.Civ.P. 11(b). In assessing the propriety of Rule 11 sanctions, this Court asks: “(1) whether the party’s claims are objectively frivolous, and (2) whether the person who signed the pleadings should have been aware that they were frivolous.” Byrne v. Nezhat, 261 F.3d 1075, 1105 (11th Cir. 2001) (citing Baker v. Alderman, 158 F.3d 516, 524 (11th Cir.1998)). The advisory committee notes on the amendments to Rule 11 aid the Court in interpreting and applying this rule. For example, the advisory committee note of 1993 states that Rule 11 was amended to emphasize “the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable.” Fed. R.Civ.P. 11 advisory committee note of 1993. The commentary specifically notes that “if evidentiary support is not obtained after a reasonable opportunity for further investigation" }, { "docid": "22561054", "title": "", "text": "was enjoined from filing any new actions against Prudential without first obtaining leave of court, and Rasch was ordered to pay Prudential $10,000. Riccard and Rasch challenge both the district court’s decision to impose sanctions against them for filing that motion as well as the nature and extent of the sane- tions imposed. We review a district court’s Rule 11 determinations only for an abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). Rule 11 requires district courts to impose “appropriate sanctions,” after notice and a reasonable opportunity to respond, where an attorney or party submits a pleading to the court that: (1) is not well-grounded in fact, i.e., has no reasonable factual basis; (2) is not legally tenable; or (3) is submitted in bad faith for an improper purpose. See Fed.R.Civ.P. 11(b). The objective standard for assessing conduct under Rule 11 is “reasonableness under the circumstances” and “what [it] was reasonable to believe at the time” the pleading was submitted. Baker v. Alderman, 158 F.3d 516, 524 (11th Cir.1998). Sanctions are warranted when a party exhibits a “deliberate indifference to obvious facts,” but not when the party’s evidence to support a claim is “merely weak.” Id. The district court did not abuse its discretion in imposing sanctions against them for filing the motion for sanctions. Their motion was part of a pattern of re-argument and re-litigation that has marked their efforts in this lawsuit, and that is not a proper use of Rule 11. See Advisory Committee Notes, 1993 Amendments (“Rule 11 motions [should not] be prepared [in order to] emphasize the merit’s of a party’s position .... ”); see also Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir.1988) (imposition of sanctions was supported by evidence that litigant brought action based on allegations which had been adversely decided against him previously). And their Rule 11 motion was baseless. When the district court ruled on Prudential’s motion to compel arbitration the court had known, and they knew the court had known, that Prudential was not an" }, { "docid": "11414572", "title": "", "text": "review for abuse of discretion the district court’s order imposing sanctions under Fed.R.Civ.P. 11. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990); United, States v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992). A district court abuses its discretion in imposing sanctions when it bases its decision “on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell, 496 U.S. at 405, 110 S.Ct. at 2461. Rule 11 requires that an attorney sign a pleading, motion, or other paper, only if, “to the best of [the attorney’s] knowledge, information and belief formed after reasonable inquiry!,] it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and ... is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Fed.R.Civ.P. 11. “The central purpose of Rule 11 is to deter baseless filings.” Borneo, Inc., 971 F.2d at 254 (citing Cooter & Gell, 496 U.S. at 393, 110 S.Ct. at 2454). A court may not impose sanctions where the attorney “conducted a reasonable inquiry and ... determined that any papers filed with the court are well-grounded in fact, legally tenable, and not interposed for some improper purpose.” Id. (reversing sanctions where claim was legally tenable); Greenberg v. Sala, 822 F.2d 882, 886-87 (9th Cir.1987) (reversing sanctions where factual errors did not render plaintiffs complaint factually frivolous); Zaldivar v. City of Los Angeles, 780 F.2d 823, 834-35 (9th Cir.1986) (reversing sanctions where successive filings did not amount to harassment), abrogated on other grounds, 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). We conclude that the district court abused its discretion by sanctioning Newton’s attorney Childress in the amount of $10,000 for an “unnecessary and frivolous” choice of venue. In its Order, the district court explained that Childress had no good faith justification for filing the lawsuit in Illinois because, even though venue was proper," }, { "docid": "22070531", "title": "", "text": "C. Wright, A. Miller & M. Kane, Federal Practice and Procedure 212, 235-36 (Supp. 1989) (hereinafter ABA Standards). Deterrence is, however, the primary goal of the sanctions. Cooter & Gell v. Hartmarx Corp., — U.S.-, 110 S.Ct. 2447, 2454, 110 L.Ed.2d 359 (1990) (“It is now clear that the central purpose of Rule 11 is to deter baseless filings in District Court and thus, ... streamline the administration and procedure of the federal courts.”); see also Advisory Committee Note to Rule 11, 97 F.R.D. 198 (1983) (justifying amendments due to ineffectiveness of prior Rule 11 in “deterring abuses” and citing need to “discourage dilatory or abusive tactics”); Gaiardo, 835 F.2d at 483; Thomas, 836 F.2d at 881; Eastway Constr. Corp. v. City of New York, 637 F.Supp. 558, 564 (E.D.N.Y.1986) (citing cases), modified, 821 F.2d 121, (2d Cir.), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). Although the rule specifically allows the award of attorney’s fees to the opposing party as an appropriate sanction, the award of fees “is but one of several methods of achieving the various goals of Rule 11.” Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.1988). The rule’s mention of attorney’s fee's does not create an entitlement to full compensation on the part of the opposing party every time a frivolous paper is filed. See, e.g., Thomas, 836 F.2d at 879 (noting that reasonable attorney’s fees “does not necessarily mean actual expenses”); Napier v. Thirty or More Unidentified Federal Agents, Employees or Officers, 855 F.2d 1080, 1091 (3d Cir.1988) (same).' Thus, although the monetary sanction imposed would normally be limited to the reasonable attorney’s fees and expenses the opposing parties incur, the court must also consider other factors in arriving at “an appropriate sanction.” Fed.R.Civ.P. 11. The appropriate sanction should be the least severe sanction adequate to deter and punish the plaintiff. Doering, 857 F.2d at 195-96; Cabell v. Petty, 810 F.2d 463, 466-67 (4th Cir.1987). We believe that a district court must expressly consider at least the following circumstances when determining the monetary sanctions appropriate" }, { "docid": "15707364", "title": "", "text": "against Lulirama pursuant to Rule 11 of the Federal Rules of Civil Procedure. We disagree. Rule 11 imposes the following duties on parties making representations to a federal court: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,— (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are -warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Fed.R.Civ.P. 11. The' rule provides that, if the court determines that an attorney has violated the above provisions, “the court may ..: impose an appropriate sanction upon the attorneys, law firms, or parties that have violated [the above provisions] or are responsible for the violation.” Id. (emphasis added). “We review all aspects of a district court’s decision to invoke Rule 11 and accompanying sanctions under an abuse of discretion standard.” Childs v. State Farm, Mut. Auto. Ins. Co., 29 F.3d 1018, 1023 (5th Cir.1994). This standard is necessarily deferential because, based on its “[f]amiliar[ity] with the issues and litigants, the district court is better situated than the court of appeals to marshal the pertinent facts arid apply' the fact-dependent legal standard mandated by Rule 11.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 402, 110 S.Ct. 2447, 2459, 110 L.Ed.2d 359 (1990). Axcess contends that the district court abused its discretion in declining to impose Rule" }, { "docid": "21429328", "title": "", "text": "it shall “enter an order describing the specific conduct that appears to violate subdivision (b)[the substantive subdivision of the Rule] and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.” See Larsen v. City of Beloit 130 F.3d 1278, 1286 (7th Cir.1997); Johnson v. Waddell & Reed, Inc., 74 F.3d 147, 150-151 (7th Cir.1996). This requirement imposed on district courts when acting on their own initiative under Rule 11(e)(1)(B) was intended to ensure due process. Johnson, 74 F.3d at 151. We review the imposition of Rule 11 sanctions for an abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990); Thomas, 836 F.2d at 872. In this case the notice and due process requirements for a district court’s imposition of sanctions on its own initiative were not followed. Thus, the district court abused its discretion by sanctioning Strauss without giving him notice of the specific conduct for which he ultimately was suspended from practice and ordered to pay GMC’s attorney’s fees. Moreover, where sanctions are imposed under Rule 11(c)(1)(B) by a district court on its own initiative, neither the award of attorney’s fees nor the suspension from practice before the court constitute a valid sanction. Specifically, an award of attorney’s fees is authorized only “if imposed on motion and warranted for effective deterrence.” Fed.R.Civ.P. 11(c)(2); see Johnson, 74 F.3d at 152 n. 3. Furthermore, when a district court finds that a disciplinary sanction more severe than admonition, reprimand, or censure under Rule 11 is warranted, it should refer the matter to the appropriate disciplinary authorities. See Fed.R.Civ.P. 11 advisory committee notes to the 1993 Amendments. Thus, in this case, even if the notice and due process requirements of Rule 11(c)(1)(B) had been followed, the order suspending Strauss from practice and the award of attorney’s fees imposed on Strauss would-have been improper. Therefore, it is hereby ordered that the district court’s order imposing sanctions on Appellant-movant Strauss is REVERSED and VACATED." }, { "docid": "21014510", "title": "", "text": "toward the plaintiff or from any other improper motive. Id. Tylene failed to prove that malice motivated the prosecution, and, thus, the District Court correctly granted summary judgment to the appellees. V. The Coontses and their counsel appeal the assessment of Federal Rule of Civil Procedure 11(b)(2) sanctions against counsel for asserting claims with no legal merit. Specifically, the District Court determined that the claims for malicious prosecution, use of excessive force, and trespass were unsupported by the facts and law. The District Court assessed sanctions against counsel in the amount of $2,000. An award of sanctions under Rule 11 is reviewed by this court for an abuse of discretion. Monterey Development Corp. v. Lawyer’s Title Ins. Corp., 4 F.3d 605, 610 (8th Cir.1993); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). The court has broad discretion in the choice of sanctions. See Cooter & Gell, 496 U.S. at 400, 110 S.Ct. 2447 (citing Advisory Committee Note on Rule 11, 1983 Amendment). Due process is satisfied if the sanctioned party has a real and full opportunity to explain its questionable conduct before sanctions are imposed. Chrysler Corp. v. Carey, 186 F.3d 1016, 1023 (8th Cir.1999). Rule 11 requires that an attorney conduct a reasonable inquiry of the factual and legal basis for a claim before filing. Miller v. Bittner, 985 F.2d 935, 938 (8th Cir.1993) (citing O’Connell v. Champion Int’l Corp., 812 F.2d 393, 395 (8th Cir.1987)). To constitute a reasonable inquiry, the prefiling investigation must uncover a factual basis for the plaintiffs allegations, as well as a legal basis. Brubaker v. City of Richmond, 943 F.2d 1363, 1373 (4th Cir.1991). Whether the attorney’s inquiry is reasonable may depend on factors such as whether counsel had to rely on a client for factual information, or whether the attorney depended on forwarding counsel or another member of the bar. Fed.R.Civ.P. 11, Notes of Advisory Committee, 1983 Amendment and 1993 Amendment. The District Court must determine “whether a reasonable and competent attorney would believe in the merit of an argument.” Miller, 985" }, { "docid": "9628208", "title": "", "text": "these exceptions apply here. First, the remand orders were explicitly based on a determination that the district court lacked subject-matter jurisdiction. Second, the remand orders had no “conclusive effect” on the parties’ substantive rights. And third, no party contends that the district court exceeded its authority. Nevertheless, as discussed below, the types of relief provided by Rule 11 and Rule 60(b)(3) do not involve “review” as proscribed by § 1447(d). Accordingly, Colgate’s motions never implicated § 1447(d) in the first instance. B. Rule 11(b) specifically authorizes courts to impose sanctions for misrepresentations. It requires attorneys to submit a filing in good faith and without knowledge of the falsity of its contents: By presenting to the court a pleading, written motion, or other paper ... an attorney ... certifies that to the best of the person’s knowledge, information, and belief.... (1) it is not being presented for any improper purpose ... [and] (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.... Fed.R.Civ.P. 11(b). If a court “determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation,” Fed.R.Civ.P. 11(c)(1), although the sanction “must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated,” Fed.R.Civ.P. 11(c)(4). The Rule 11 jurisdictional issue before us involves two similar but distinct questions: (1) whether a district court retains jurisdiction to impose sanctions after remanding an action to state court and (2) whether an appeals court can review a district court’s determination regarding the imposition of sanctions in such' a circumstance. As set forth below, we answer both questions in the affirmative. The Supreme Court itself has spoken on these issues. In Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 389-90, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), the district court granted the defendants’ Rule 11 motion more than three years after the plaintiff had voluntarily dismissed the case. On" }, { "docid": "23345130", "title": "", "text": "claim for relief under § 1983, nonetheless, Fries also failed to establish that additional requirement — he failed to demonstrate that he was deprived of due process of law. To the contrary, the record clearly illustrates that Fries received more than sufficient process of law. This lawsuit is the fifth complaint filed by Fries that includes allegations- related, if not identical, to those previously asserted in an attempt to relitigate his claim to royalty payments from the Larson Company. In fact, previous complaints have been dismissed by the district court, and those dismissals affirmed by this court — not once, but twice. Fries had his day in court and has been rendered due process of law. Next, we consider the district court’s order imposing sanctions oh Fries and his lawyer; we review the district court’s imposition of sanctions for an abuse of discretion. Matter of Generes, 69 F.3d 821, 827 (7th Cir.1995). One of the basic purposes of Rule 11 of the Federal Rules of Civil Procedure is “to deter baseless filings in the district court— ” Cooter & Gell v. Hartmarx Corp., et al., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Specifically, Rule 11 requires that an attorney and/or party certify to the best of their “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that any pleading or motion presented to the court is not being presented for an improper purpose and that the allegations and other factual contentions have a legally sufficient basis to support the claim. As a preliminary matter, when a party requests a court to impose sanctions, it must first give notice of its intent to seek sanctions and provide the attorney or party charged with a reasonable opportunity to respond. Fed. R. Civ. PRO. 11(c). Then, a district court determines whether there has been a violation of Rule 11 to warrant the imposition of sanctions, id.; a court may impose sanctions on a party for making arguments or filing claims that are frivolous, legally unreasonable, without factual foundation, or asserted for an improper purpose. In particular," }, { "docid": "15953046", "title": "", "text": "existing law. Johnson v. Veterans Administration, 107 F.R.D. 626, 628 (N.D.Miss.1985) (citations omitted). 24. “[T]he central purpose of Rule 11 is to deter baseless filings in District Court and thus, consistent with the Rule Enabling Act’s grant of authority, streamline the administration and procedure of the federal courts.” See Advisory Committee Note on Rule 11, 28 U.S.C.App., p. 576 [USCS Court Rules, Fed.Rule of Civ.Proc., Notes following Rule 11]. Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well-grounded in fact, legally tenable, and ‘not interposed for any improper purpose.’ Cooter & Gell v. Hart-marx Corporation, 496 U.S. 384, 393, 110 S.Ct. 2447, 2454, 110 L.Ed.2d 359, 374 (1990). 25. A district court may enforce Rule 11 even after the plaintiff has filed a notice of dismissal under Rule 41(a)(1). (Citations omitted)____ As the “violation of Rule 11 is complete when the paper is filed,” (citations omitted), a voluntary dismissal does not expunge the Rule 11 violation. In order to comply with Rule ll’s requirement that a court “shall” impose sanctions “ ‘[i]f a pleading, motion, or other papers is signed in violation of this rule,’ a court must have the authority to consider whether there has been a violation of the signing requirement regardless of the dismissal of the underlying action.” Cooter & Gell v. Hartmarx Corporation, supra, 496 U.S. at 395, 110 S.Ct. at 2455, 110 L.Ed.2d at 375. 26. “Rule 41(a)(1) does not codify any policy that the plaintiff’s right to one free dismissal also secures the right to file baseless papers. The filing of complaints, papers or other motions without taking the necessary care in their preparation is a separate abuse of the judicial system, subject to separate sanction____ If a litigant could purge his violation of Rule 11 merely by taking a dismissal, he would lose all incentive to “stop, think and investigate more carefully before serving and filing papers.” (Citation omitted)” Cooter & Gell v. Hartmarx Corp., supra at 397-98, 110 S.Ct. at 2457, 110 L.Ed.2d" }, { "docid": "21353393", "title": "", "text": "or reversing existing law or for establishing new law,” and that “the factual contentions [therein] have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed.R.Civ.P. 11(b)(1)-(3). Where a pleading or motion is filed in violation of the Rule, the court may sanction the signatory attorney appropriately. Fed.R.Civ.P. 11(c). The “central purpose of Rule 11 is to deter baseless filings in district court and thus ... streamline the administration and procedure of the federal courts.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Since the 1993 amendments, the language of Rule 11 indicates that the imposition of sanctions is left to the discretion of the district court judge. See Raf-ferty v. NYNEX Corp., 60 F.3d 844, 852 n. 12 (D.C.Cir.1995); Fed.R.Civ.P. 11(c) (noting that when the rule has been violated, a court may impose an appropriate sanction); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1336 (2d ed. Supp.2000) (commenting that the scope of the Advisory Committee’s list of factors to consider when deciding whether or not to impose a sanction suggests that “the district court is given the widest possible latitude under the new” version of Rule 11). At the outset, the Court notes that Plaintiffs’ filings in this action are universally deficient; Plaintiffs’ Amended Complaint is entirely devoid of merit, and Plaintiffs’ Oppositions fail to address the majority of arguments raised by Defendants in their motions to dismiss and provide a dearth of legal support for Plaintiffs’ positions. Moreover, Plaintiffs’ largely identical Oppositions ignore the Court’s Order requiring Plaintiffs to file individual oppositions to Defendants’ motions to dismiss. The Court certainly does not condone the type of slipshod filings presented in this case, but focuses its attention on the grounds for sanctions raised by AFGE and Concentra in their motions. 1. AFGF’s Motion for Sanctions AFGE moves for sanctions against Plaintiffs’ counsel, arguing that he violated Rule 11(b)(2) by filing the Amended Complaint “when he knew that the claims therein" } ]

[ { "docid": "22242234", "title": "", "text": "February 1985, Moss and Harlean submitted an application with officials in Hong Kong for residency there. Moss continues to reside with his wife and family at the Hong Kong apartment. At the hearing on Moss’s motion for dismissal, the district court ruled that Lew bore the burden of establishing that Moss’s domicile was California at the time the complaint was filed. The court stated that the “[p]laintiff always has the burden of establishing subject matter jurisdiction.” The court found that: [T]he plaintiff has not met his burden of establishing that the defendant was a citizen of California at the time this lawsuit was instituted. And so on that basis, I conclude that there is no subject matter jurisdiction because a citizen of the United States cannot be sued under diversity jurisdiction unless he is a citizen of some other state. And in October of ’84 the defendant Stanton Moss was not a citizen of California or of any other state of the United States. The court dismissed Lew’s suit “in its entirety” against both Moss and Harlean. Lew appeals. II LEGAL STANDARD AND STANDARD OF REVIEW Federal district courts are vested with original jurisdiction over civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between “citizens of different States.” 28 U.S.C. § 1332(a)(1). To demonstrate citizenship for diversity purposes a party must (a) be a citizen of the United States, and (b) be domiciled in a state of the United States. See, e.g., Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir.1983); Hill v. Rollen, 615 F.2d 886, 889 (9th Cir.1980). Our cases have established several principles to guide this inquiry. First, the party asserting diversity jurisdiction bears the burden of proof. Resnik v. La Paz Guest Ranch, 289 F.2d 814, 819 (9th Cir.1961). Second, a person is “domiciled” in a location where he or she has established a “fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.’ ” Owens v. Huntling, 115 F.2d 160, 162 (9th Cir.1940) (quoting" } ]

[ { "docid": "22969785", "title": "", "text": "v. Sam Broadhead Trust, 588 F.2d 431 (5th Cir.1979) (fact finding regarding principal place of business of corporation not clearly erroneous); 1 J. Moore, Moore’s Federal Practice § 0.74[1] (1996). In making a jurisdictional assessment, a federal court is not limited to the pleadings; it may look to any record evidence, and may receive affidavits, deposition testimony or live testimony concerning the facts underlying the citizenship of the parties. See, e.g. Jones v. Landry, 387 F.2d 102 (5th Cir.1967); 1 J. Moore, Moore’s Federal Practice § 0.74[1] (1996). The court has wide, but not unfettered, discretion to determine what evidence to use in making its determination of jurisdiction. See Ray v. Bird & Son & Asset Realization Co., 519 F.2d 1081 (5th Cir.1975). A person cannot be a “citizen” of a state unless she is also a citizen of the United States. See e.g., Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Mas v. Perry, 489 F.2d 1396 (5th Cir.) cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974). A United States citizen who is domiciled in a state is a citizen of that state. See Robertson v. Cease, 97 U.S. 646, 648-650, 24 L.Ed. 1057 (1878). Thus, with few exceptions, state citizenship for diversity purposes is regarded as synonymous with domicile. E.g., Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027 (1st Cir.1988); 1 J. Moore, Moore’s Federal Practice § 0.74[3] n. 3. Accordingly, it has been held consistently that a diversity suit may not be maintained under 28 U.S.C. § 1332(a)(1) by or against a United States citizen who is domiciled in a foreign country, for a resident of a foreign country is not necessarily a citizen thereof. Smith v. Carter, 545 F.2d 909 (5th Cir.) cert. denied, 431 U.S. 955, 97 S.Ct. 2677, 53 L.Ed.2d 272 (1977). Moreover, an American living abroad is not by virtue of that domicile a citizen or subject of the foreign state in which he resides so as to permit invocation of the alien-age jurisdiction prescribed in 28 U.S.C. § 1332(a)(2) of the Judicial Code. 13B" }, { "docid": "13272564", "title": "", "text": "record, however, revealed to counsel and this court that Axel had not only failed to plead diversity jurisdiction, but that it had also failed to plead facts from which the existence of such jurisdiction could properly be inferred. Although the pleadings set forth the residence of each of the natural persons who are parties to the litigation, they did not positively establish the citizenship of those persons. See, e.g., J.A. at 43 (amended complaint) (stating residence, but not citizenship or domicile of Carroll and Lanier); id . at 3-4 (initial complaint) (same). Nor was counsel able to refer the court to anything else in the record that clearly established the citizenship of those persons. As the Supreme Court has consistently held, however, state citizenship for purposes of diversity jurisdiction depends not on residence, but on national citizenship and domicile, see, e.g., Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (“In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State.”), and the existence of such citizenship cannot be inferred from allegations of mere residence, standing alone. See, e.g., Realty Holding Co. v. Donaldson, 268 U.S. 398, 399, 45 S.Ct. 521, 69 L.Ed. 1014 (1925) (“The bill alleges that ... appellee [is] a’resident’ of Michigan. This is not a sufficient allegation of appellee’s Michigan citizenship.”); Shaw v. Quincy Mining Co., 145 U.S. 444, 447, 12 S.Ct. 935, 36 L.Ed. 768 (1892) (“It was held by this court from the beginning that an averment that a party resided within the State or the district in which the suit was brought was not sufficient to support the [diversity] jurisdiction, because in the common use of words a resident might not be a citizen, and therefore it was not stated expressly and beyond ambiguity that he was a citizen of the State____ The same rule has been maintained to the present day----”); Robertson v. Cease, 97 U.S. 646, 648, 24 L.Ed. 1057 (1878) (“Looking," }, { "docid": "13272563", "title": "", "text": "... are factually and legally distinct from the State Claims.” J.A. at 104. It follows from these arguments and findings that the state-law counts and Superfund counts neither “derive from a common nucleus of operative fact,” nor are so closely related that Axel “would ordinarily be expected to try them all in one judicial proceeding,” and thus that supplemental jurisdiction could not be exercised over the state-law counts. Cf. Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836, 848 (4th Cir.1974) (noting failure of pendant jurisdiction over state-law count that was “separately maintainable and determinable without any reference to the facts alleged or contentions stated in or with regard to the other [federal] count”). III. When, at oral argument, this court questioned Axel’s counsel about the apparent lack of supplemental jurisdiction, counsel tentatively suggested that jurisdiction over the state-law counts could, perhaps, be sustained under 28 U.S.C. § 1332 (diversity jurisdiction), a statutory basis for jurisdiction that Axel had previously invoked neither in the district court nor before this court. An examination of the pleadings and record, however, revealed to counsel and this court that Axel had not only failed to plead diversity jurisdiction, but that it had also failed to plead facts from which the existence of such jurisdiction could properly be inferred. Although the pleadings set forth the residence of each of the natural persons who are parties to the litigation, they did not positively establish the citizenship of those persons. See, e.g., J.A. at 43 (amended complaint) (stating residence, but not citizenship or domicile of Carroll and Lanier); id . at 3-4 (initial complaint) (same). Nor was counsel able to refer the court to anything else in the record that clearly established the citizenship of those persons. As the Supreme Court has consistently held, however, state citizenship for purposes of diversity jurisdiction depends not on residence, but on national citizenship and domicile, see, e.g., Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (“In order to be a citizen of a State within the meaning of the diversity statute, a natural person" }, { "docid": "23209558", "title": "", "text": "to establish diversity jurisdiction because their notice of removal did not allege facts sufficient to establish complete diversity of citizenship. The notice of removal stated that Plaintiffs were California residents, that Pfizer was a corporate citizen of Delaware and New York, and that “[n]one of the other defendants is a citizen of the State of California.” Like Plaintiffs’ complaint, the notice of removal did not affirmatively allege the state of citizenship of corporate defendants Warner-Lambert, Care Technologies, or Hogil; it merely alleged that they wrere not citizens of California. The district court held that Pfizer’s failure to specify the corporate citizenship of its three co-defendants meant that Defendants had “failed to meet their burden of proving that the parties are of [completely] diverse citizenship.” Although, at this stage of the case, the defendants were merely required to allege (not to prove) diversity, the district court was concerned about a legitimate issue. Absent unusual circumstances, a pai'ty seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant parties. See Whitmire v. Vic-tus Ltd. t/a Master Design Furniture, 212 F.3d 885, 887 (5th Cir.2000) (“[I]n a diversity action, the plaintiff must state all parties’ citizenships such that the existence of complete diversity can be confirmed.”) (quoting Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 177 F.3d 210, 222 n. 13 (3d Cir.1999)); see also 5 C.A. Wright & A. Miller, Federal Practice and Procedure § 1208 at 101 (2d ed.1990). There is, however, a more serious pleading defect. Plaintiffs’ complaint and Pfizer’s notice of removal both state that Plaintiffs were “residents” of California. But the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency. To be a citizen of a state, a natural person must first be a citizen of the United States. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). The natural person’s state citizenship is then determined by her state of domicile, not her state of residence. A person’s domicile is her permanent home, where she resides with the" }, { "docid": "23504871", "title": "", "text": "time in his supplemental briefing: “[T]he record evidence demonstrates that Mr. Lama [Oscar Sr.] was living temporarily at an address in Florida, and that he had maintained various business interests in the Dominican Republic.” If true, this assertion would defeat diversity jurisdiction; U.S. citizens domiciled abroad are neither “citizens of a State” under § 1332(a) nor “citizens or subjects of a foreign state” and therefore are not proper parties to a diversity action in federal court. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828-29, 109 S.Ct. 2218, 2221, 104 L.Ed.2d 893 (1989). Thus, our next question is whether Oscar Sr. is, in fact, domiciled in the State of Florida. “For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989); see also Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1249 (11th Cir.2005). Domicile is not synonymous with residence; one may temporarily reside in one location, yet retain domicile in a previous residence. Although physically present in the current residence, the person does not intend to remain in that state indefinitely. The issue of Oscar Sr.’s domicile was never raised in the district court and our record on this topic is therefore lean. What facts exist, however, satisfy us that Oscar Sr. is domiciled in Florida. First, Oscar Sr. maintained throughout the litigation that he is “domiciled within the City of Aventura, Florida.” See Am. Answer and Affirmative Defenses to Am. Compl. ¶ 5; Joint Pretrial Stipulation 6. His admission in the amended answer is noteworthy. Molinos alleged only that Oscar Sr. was a “resident” of Florida ; Oscar Sr.’s admission asserted not that he was merely a “resident” but that he was domiciled in Florida. Courts generally give little weight to a party’s profession of domicile; they do so because these declarations are often self-serving. 13E Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3612, at 549 (3d ed.2009)." }, { "docid": "16840935", "title": "", "text": "a State different from any defendant.’ ” Mississippi ex rel. Hood v. AU Optronics Corp., — U.S. -, 134 S.Ct. 736, 740, 187 L.Ed.2d 654 (2014) (quoting 28 U.S.C. § 1332(d)(2)(A)). If a defendant cannot establish that CAFA’s minimal diversity has been satisfied, then CAFA cannot serve as a basis for subject matter jurisdiction. See Weight v. Active Network, Inc., 29 F.Supp.3d 1289, 1292 (S.D.Cal.2014) (explaining that if “there is no minimal diversity” under CAFA, “the Court must remand this case”). As the Ninth Circuit has explained, “the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir.2001). A “natural person’s state citizenship is ... determined by her state of domicile, not her state of residence.” Id. “A person’s domicile,” in turn, “is her permanent Home, where she resides with the intention to remain or to which she intends to return,” and “[a] person residing in a given state. is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Id.; see also, e.g., Weible v. United States, 244 F.2d 158, 163 (9th Cir.1957) (“Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a, certain definite place one’s permanent abode, though, to be sure, domicile often hangs on the slender thread of intent alone, as for instance where one is a wanderer over the earth.”). In the instant case, Plaintiffs’ original petition stated that “Plaintiffs are adult residents of Saint Louis County, Missouri.” Pét. ¶ 1 (emphasis added). The original petition’s, class definition also spoke of residency, rather than citizenship: Id. ¶ 26 (emphasis added). Defendants, both of whom are Missouri citizens, see id. ¶¶ 2-3, assert “that at least one member of the putative class is presently a resident of Missouri while maintaining citizenship in another state,” Removal Notice ¶ 15. In support of that assertion, Defendants allege that their “insurance programs do not restrict membership to citizens of Missouri,” and that their “members include individuals enrolled in Defendants’ plans as ‘guests’ while resident" }, { "docid": "23209560", "title": "", "text": "intention to remain or to which she intends to return. See Lew v. Moss, 797 F.2d 747, 749 (9th Cir.1986). A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state. See, e.g., Weible v. United States, 244 F.2d 158, 163 (9th Cir.1957) (“Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a certain definite place one’s permanent abode, though, to be sure, domicile often hangs on the slender thread of intent alone, as for instance where one is a wanderer over the earth. Residence is not an immutable condition of domicile.”). In this case, neither Plaintiffs’ complaint nor Pfizer’s notice of removal made any allegation regarding Plaintiffs’ state citizenship. Since the party asserting diversity jurisdiction bears the burden of proof, see Lew, 797 F.2d at 749, Pfizer’s failure to specify Plaintiffs’ state citizenship was fatal to Defendants’ assertion of diversity jurisdiction. The district court noted, however, and we agree, that Pfizer could potentially have cured its defective allegations regarding citizenship by amending its notice of removal. See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”); Jacobs v. Patent Enforcement Fund, Inc., 230 F.3d 565, 568 n. 3 (2d Cir.2000) (“[A]n inadequate pleading does not in itself constitute an actual defect of federal jurisdiction.”); see also 15 James Wm. Moore et al, Moore’s Federal Practice § 102.17[1], at 102-31 (3d ed. 2001) (“Moore’s”). Indeed, Plaintiffs have never disputed diversity of citizenship. The district court therefore examined Pfizer’s arguments as to why the amount-in-controversy requirement of 28 U.S.C. § 1332 was satisfied. We follow suit. B. Amount in Controversy Our opinion in Gibson considers most of Pfizer’s amount-in-controversy arguments in detail. See Gibson, 261 F.3d at -. For the reasons given in that opinion, we hold that if a named plaintiff in a diversity class action has a claim with an amount in controversy in excess of $75,000, 28 U.S.C. § 1367 confers supplemental jurisdiction over claims of unnamed class members" }, { "docid": "6581797", "title": "", "text": "at 1065. In addition, there were two other potential defects caused by the presence of Mr. and Mrs. Farouki, both of whom were aliens. Any jurisdictional defects caused by the presence of Mrs. Farouki and Dinavest as defendants were cured when they were dismissed from the case prior to trial, pursuant to the joint stipulation of the parties. It is well settled that a district court has authority under Rule 21 of the Federal Rules of Civil Procedure to dismiss a dispensable, non-diverse party at any time, even after a judgment has been rendered. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832, 109 S.Ct. 2218, 2223, 104 L.Ed.2d 893 (1989). The third potential impediment to complete diversity, arising from Faroukfis status as an alien when Saadeh filed his complaint, is not so easily resolved. Saadeh contends that because Farouki became a United States citizen by the time of trial the district court had jurisdiction under § 1332(a)(2). If this were true, then the court need not consider whether he was a “citizen of a State” under the diversity statute, by virtue of his permanent resident status, at the time Saadeh filed his complaint. Farouki points out, however, that even though he became a United States citizen, he was not a citizen of any state for purposes of § 1332(a) because he subsequently established domicile in Egypt. To qualify as a “citizen of a State” for the purposes of § 1332(a), a natural person must be both a citizen of the United States and be domiciled within a particular state. Newman-Green, 490 U.S. at 828, 109 S.Ct. at 2221. Thus, even were the court to recognize the change in citizenship, it would be essential for Saa-deh to demonstrate that Farouki retained his Maryland domicile. We conclude, however, that Farouki’s change in citizenship and possible change in domicile could not cure a defect in complete diversity if one existed at the time Saadeh filed his complaint. It is well established that diversity of citizenship is determined at the time the complaint is filed. See, e.g., Freeport-McMoRan, Inc. v. K N Energy, Inc.," }, { "docid": "16840934", "title": "", "text": "requirement that tracks the general pleading standard of Rule 8(a) of the Federal Rules of Civil Procedure. Id. at 553 (citing 28 U.S.C. § 1446(a)). III. DISCUSSION. Defendants argue that there are two independent bases for subject matter jurisdiction in federal court: (1) diversity jurisdiction under CAFA; and (2) federal question jurisdiction under HIPAA. See Removal Notice ,¶¶ 10-23; Opp. at 3-12; Defs. Supp. Br. at 2-9. Plaintiffs dispute both of these bases for jurisdiction. See Mot. at 3-12; Reply at 1-6; Pls. Supp. Br. at 2-9. For the reasons stated below, the Court agrees with Plaintiffs. A. Diversity Jurisdiction Under CAFA CAFA gives federal courts jurisdiction over certain class actions if (1) “the class has more than 100 members”; (2) “the parties are minimally diverse”; and (3) “the amount in controversy exceeds $5 million.” Dart Cherokee, 135 S.Ct. at 552 (citing 28 U.S.C. § 1332(d)(2), (5)(B)). CAFA’s “minimal diversity” requirement means that “a federal court may exercise jurisdiction over a class action if ‘any member of a class of plaintiffs is a citizen of a State different from any defendant.’ ” Mississippi ex rel. Hood v. AU Optronics Corp., — U.S. -, 134 S.Ct. 736, 740, 187 L.Ed.2d 654 (2014) (quoting 28 U.S.C. § 1332(d)(2)(A)). If a defendant cannot establish that CAFA’s minimal diversity has been satisfied, then CAFA cannot serve as a basis for subject matter jurisdiction. See Weight v. Active Network, Inc., 29 F.Supp.3d 1289, 1292 (S.D.Cal.2014) (explaining that if “there is no minimal diversity” under CAFA, “the Court must remand this case”). As the Ninth Circuit has explained, “the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir.2001). A “natural person’s state citizenship is ... determined by her state of domicile, not her state of residence.” Id. “A person’s domicile,” in turn, “is her permanent Home, where she resides with the intention to remain or to which she intends to return,” and “[a] person residing in a given state. is not necessarily domiciled there, and thus is not necessarily a citizen of" }, { "docid": "14880050", "title": "", "text": "whose sovereignty it is created.” Koehler, 209 F.3d at 139 (citing Matimak, 118 F.3d at 78). Although § 1332(c)(1) deems a corporation to be a citizen both of the state where it is incorporated and where it has its” principal place of business, Jordan has sought to remove the place of incorporation entirely from the analysis of diversity. This reasoning runs contrary to that of the Court of Appeals in cases involving traditional sovereignties, see e.g., Creaciones Con Idea S.A. de C.V. v. Mashreqbank PSC, 232 F.3d 79, 82 (2d Cir.2000); Franceskin v. Credit Suisse, 214 F.3d 253, 258 (2d Cir.2000), and is questionable in light of the fact that, for purposes of Section 1332(c), the Second Circuit has “suggested that alien corporations are not citizens of the state in which they have their principal place of business.” Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 790 (2d Cir.1980) (citing Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 628 n. 5 (2d Cir.1976)). This question need not be resolved for even if Jordan were considered to be a citizen of Illinois, the presence of Kaminsky, alleged to be a citizen of the United States and a resident of the United Kingdom, defeats diversity jurisdiction, for “United States citizens who are domiciled abroad are neither citizens of any state of the United States nor citizens or subjects of a foreign state, and § 1332(a) does not provide that the courts have jurisdiction over a suit to which such persons are parties.” Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d Cir.1990); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (“In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State.”). Quite simply, “a suit by or against United States citizens domiciled abroad may not be premised on diversity.” Cresswell, 922 F.2d at 68 (citations omitted); see also Herrick Co., Inc. v. SCS Communications, Inc., 251" }, { "docid": "2132627", "title": "", "text": "where the matter in controversy exceeds the sum or , value of $75,000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State and -citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. “In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State;” Newman-Green, 490 U.S. at 828, 109 S.Ct. 2218 (emphasis in original). A United States citizen who has no domicile in a state is “stateless” and destroys diversity jurisdiction. See id. at 829, 109 S.Ct. 2218 (“[Defendant’s ‘stateless’ status destroyed complete diversity under § 1332(a)(3), and his United States citizenship destroyed complete diversity under § 1332(a)(2).”). Thus, if Ms. Da mon, who is a United States citizen, does not have a United States domicile, she will destroy the Court’s subject matter jurisdiction. There are two requirements to establish a domicile: (1) “physical presence in a state”; and (2) “intent to remain there indefinitely.” Altimore v. Mount Mercy Coll., 420 F.3d 763, 768 (8th Cir.2005); Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir.1990). Domicile is determined at the time the action is instituted. Yeldell, 913 F.2d at 537. The Damons’ arguments regarding Ms. Damon’s potential domiciles in the United States have shifted as the parties litigated this matter before the Magistrate Judge in the context of motions to amend pleadings. None are persuasive. First, in response to Realtor Defendants’ motion to dismiss, the Damons argued that Ms. Damon’s domicile was" }, { "docid": "11202797", "title": "", "text": "but ‘domicile’ means living in that locality with intent to make it a fixed and permanent home. ‘Residence’ simply requires bodily presence as an inhabitant in a given place, while ‘domicile’ requires bodily presence in that place, and also an intention to make it one’s domicile.” Domicile is the most steadfast of the words, and is pretty well anchored in legal literature so far as meaning is concerned. Residence, on the other hand, has an evasive way about it, with as many colors as Joseph’s coat. It reflects the context in which it is found, whereas “domicile” controls the context. Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a certain definite place one’s permanent abode, though, to be sure, domicile often hangs on the slender thread of intent alone, as for instance where one is a wanderer over the earth. Residence is not an immutable condition of domicile. It appears to us that the courts in reaching divergent conclusions as to the applicability of Section 116 have, more times than even they realize, been caught out on the shifting meaning of the word residence. If we can lock that word down and view it in its proper perspective and context in Section 116, then we have mastered its unruly spirit, halter broken it, so to speak. First we clear away the area occupied by the word domicile, then examine what we have left. As Judge Goodman stated in Meals v. United States, D.C.N.D.S.D.Cal.1953, 110 F.Supp. 658, the word is not statutorily defined, though it was attempted by Regulation 111, 26 C.F.R. 29.116-1. Chief Judge Phillips in his dissent in Jones v. Kyle, 10 Cir., 1951, 190 F.2d 353, 356, said: “The word ‘resident’ is a term of many and varied meanings. It was, therefore, appropriate for the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to adopt interpretative regulations. As used in the statute and as interpreted by the regulation ‘residence’ means broadly, presence as an inhabitant in a given place, not as a transient, but" }, { "docid": "21043635", "title": "", "text": "a State” and “citizens or subjects of a foreign State.” 28 U.S.C. § 1332(a) (1988). It is well established that for a case to come within this statute there must be complete diversity and that diversity is not complete if any plaintiff is a citizen of the same state as any defendant. See, e.g., Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373-74, 98 S.Ct. 2396, 2402-03, 57 L.Ed.2d 274 (1978); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). United States citizens who are domiciled abroad are neither citizens of any state of the United States nor citizens or subjects of a foreign state, and § 1332(a) does not provide that the courts have jurisdiction over a suit to which such persons are parties. Though we are unclear, as to Congress’s rationale for not granting United States citizens domiciled abroad rights parallel to those it accords to foreign nationals, the language of § 1332(a) is specific and requires the conclusion that a suit by or against United States citizens domiciled abroad may not be premised on diversity. See Smith v. Carter, 545 F.2d 909 (5th Cir.), cert. denied, 431 U.S. 955, 97 S.Ct. 2677, 53 L.Ed.2d 272 (1977); see also 1 Moore’s Federal Practice ¶ 0.74[4] (1990); 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3621, at 577-78 (1984). According to the complaint, though most of the plaintiffs are citizens of foreign countries, three plaintiffs are United States citizens who permanently reside abroad. Under the above principles, therefore, since not all of the plaintiffs are entitled to sue in federal court based on the diversity statute, plaintiffs may not maintain this suit on the basis of diversity. In response to our raising this issue, plaintiffs have suggested that the three plaintiffs who are United States citizens residing abroad might be dropped from the suit. Though there is authority for permitting the dismissal of claims against nondi-verse defendants in order to cure a defect in diversity jurisdiction, see, e.g., Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104" }, { "docid": "23504870", "title": "", "text": "399-400 (3d Cir.2008); Coury v. Prot, 85 F.3d 244, 250 (5th Cir.1996); Action S.A. v. Marc Rich & Co., 951 F.2d 504, 507 (2d Cir.1991); Sadat v. Mertes, 615 F.2d 1176, 1187 (7th Cir.1980); see also Von Dunser v. Aronoff, 915 F.2d 1071, 1073-76 (6th Cir.1990) (agreeing with Sadat’s reasoning, but finding no occasion to so hold because the facts regarding the parties’ domicile were unclear and required remand); Las Vistas Villas, S.A. v. Petersen, 778 F.Supp. 1202, 1204 (M.D.Fla.1991), aff'd 13 F.3d 409 (11th Cir.1994). We are persuaded by the reasoning of these courts and therefore hold that an individual who is a dual citizen of the United States and another nation is only a citizen of the United States for the purposes of diversity jurisdiction under § 1332(a). Oscar Sr.’s Dominican citizenship therefore poses no bar to this court’s jurisdiction. Oscar Sr.’s second contention is that he is domiciled in the Dominican Republic and not domiciled in — and, hence, not a citizen of — Florida. He raises this possibility for the first time in his supplemental briefing: “[T]he record evidence demonstrates that Mr. Lama [Oscar Sr.] was living temporarily at an address in Florida, and that he had maintained various business interests in the Dominican Republic.” If true, this assertion would defeat diversity jurisdiction; U.S. citizens domiciled abroad are neither “citizens of a State” under § 1332(a) nor “citizens or subjects of a foreign state” and therefore are not proper parties to a diversity action in federal court. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828-29, 109 S.Ct. 2218, 2221, 104 L.Ed.2d 893 (1989). Thus, our next question is whether Oscar Sr. is, in fact, domiciled in the State of Florida. “For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989); see also Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1249 (11th Cir.2005). Domicile is not synonymous with residence; one may temporarily" }, { "docid": "21043636", "title": "", "text": "domiciled abroad may not be premised on diversity. See Smith v. Carter, 545 F.2d 909 (5th Cir.), cert. denied, 431 U.S. 955, 97 S.Ct. 2677, 53 L.Ed.2d 272 (1977); see also 1 Moore’s Federal Practice ¶ 0.74[4] (1990); 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3621, at 577-78 (1984). According to the complaint, though most of the plaintiffs are citizens of foreign countries, three plaintiffs are United States citizens who permanently reside abroad. Under the above principles, therefore, since not all of the plaintiffs are entitled to sue in federal court based on the diversity statute, plaintiffs may not maintain this suit on the basis of diversity. In response to our raising this issue, plaintiffs have suggested that the three plaintiffs who are United States citizens residing abroad might be dropped from the suit. Though there is authority for permitting the dismissal of claims against nondi-verse defendants in order to cure a defect in diversity jurisdiction, see, e.g., Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (upholding power of court of appeals to dismiss claims against nondiverse defendants “with prejudice”), the dismissal of the three nonqualifying plaintiffs in the present case may not provide a cure, because S & C has advised the Court that several of its own partners are United States citizens who reside abroad and that at least one of them has maintained his primary residence in France for more than a decade. Plaintiffs have not challenged S & C’s representation, and indeed, the complaint itself suggests that two of S & C’s partners may be domiciled in foreign countries. If in fact any of S & C’s foreign-residing United States citizen partners are domiciled abroad, a diversity suit could not be brought against them individually; in that circumstance, since for diversity purposes a partnership is deemed to take on the citizenship of each of its partners, see Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 456, 20 S.Ct. 690, 698, 44 L.Ed. 842 (1900); Lewis v. Odell, 503 F.2d 445, 446" }, { "docid": "23209559", "title": "", "text": "Whitmire v. Vic-tus Ltd. t/a Master Design Furniture, 212 F.3d 885, 887 (5th Cir.2000) (“[I]n a diversity action, the plaintiff must state all parties’ citizenships such that the existence of complete diversity can be confirmed.”) (quoting Chemical Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 177 F.3d 210, 222 n. 13 (3d Cir.1999)); see also 5 C.A. Wright & A. Miller, Federal Practice and Procedure § 1208 at 101 (2d ed.1990). There is, however, a more serious pleading defect. Plaintiffs’ complaint and Pfizer’s notice of removal both state that Plaintiffs were “residents” of California. But the diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency. To be a citizen of a state, a natural person must first be a citizen of the United States. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). The natural person’s state citizenship is then determined by her state of domicile, not her state of residence. A person’s domicile is her permanent home, where she resides with the intention to remain or to which she intends to return. See Lew v. Moss, 797 F.2d 747, 749 (9th Cir.1986). A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state. See, e.g., Weible v. United States, 244 F.2d 158, 163 (9th Cir.1957) (“Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a certain definite place one’s permanent abode, though, to be sure, domicile often hangs on the slender thread of intent alone, as for instance where one is a wanderer over the earth. Residence is not an immutable condition of domicile.”). In this case, neither Plaintiffs’ complaint nor Pfizer’s notice of removal made any allegation regarding Plaintiffs’ state citizenship. Since the party asserting diversity jurisdiction bears the burden of proof, see Lew, 797 F.2d at 749, Pfizer’s failure to specify Plaintiffs’ state citizenship was fatal to Defendants’ assertion of diversity jurisdiction. The district court noted, however, and we agree, that Pfizer could potentially have cured" }, { "docid": "354611", "title": "", "text": "here, unless all of the members of the plaintiff partnership are of distinct citizenship from all of the defendants.”); Underwood v. Maloney, 256 F.2d 334, 338 (3d Cir.1958) (“[WJhere jurisdiction is sought to be founded on diversity of citizenship, the action being by or against an unincorporated association ... the citizenship of the individual members must be shown to be wholly diverse from that of the opposing party or those of the opposing parties.”); cf. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806) (“[WJhere the interest is joint, each of the persons concerned in that interest must be competent to sue, or liable to be sued in [the federal] courts.”). Partnerships which have American partners living abroad pose a special problem. “In order to be a citizen of a State within the meaning of the diversity statute, a natural person must be both a citizen of the United States and be domiciled within the State.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). An American citizen domiciled abroad, while being a citizen of the United States is, of course, not domiciled in a particular state, and therefore such a person is “stateless” for purposes of diversity jurisdiction. See id. Thus, American citizens living abroad cannot be sued (or sue) in federal court based on diversity jurisdiction as they are neither “citizens of a State,” see 28 U.S.C. § 1332(a)(1), nor “citizens or subjects of a foreign state,” see id. § 1332(a)(2). See Newman-Green, 490 U.S. at 826, 109 S.Ct. 2218. Putting these principles together, that is, that the citizenship of the individual partners must be shown to be wholly diverse from that of the opposing party (or those of the opposing parties) and that American citizens living abroad cannot sue (or be sued) in federal court based on diversity jurisdiction, our sister circuits and other federal courts have concluded that if a partnership has among its partners any American citizen who is domiciled abroad, the partnership cannot sue (or be sued) in federal court based upon diversity jurisdiction. See" }, { "docid": "8361849", "title": "", "text": "he still owns a warehouse in Macon, it is to be sold this month. The family home in Macon, Georgia sold in October 1995, and Mr. Mitchell stated that his family has no other house or home in this state. II. LAW Congress has granted this court the jurisdiction to hear civil action between citizens of different states where the matter in controversy exceeds the sum or value of $50,000, exclusive of interests and costs. 28 U.S.C. § 1332(a)(1). Because the existence of federal jurisdiction is dependent upon the facts as they exist when the complaint is filed, Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989), the proper focus for determining “diversity” is the parties’ citizen ship when suit is commenced. Maryland Cas. Co. v. W.R. Grace and Co., 23 F.3d 617, 622 (2d Cir.1993). The party seeking to invoke federal diversity jurisdiction bears the burden of establishing diversity by a preponderance of the evidence. Sheehan v. Gustafson, 967 F.2d 1214 (8th Cir.1992). “Citizenship” and “domicile” are synonymous for purposes of diversity jurisdiction. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991). Residence, however, is not the equivalent of either citizenship or domicile. America’s Best Inns v. Best Inns of Abilene, 980 F.2d 1072, 1074 (7th Cir.1992). Generally, a person’s domicile is the place of “his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom-” Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.), cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974). This general definition of domicile has varying applications, however, according to the particular individual to whom it is applied. Adults, for example, are deemed to establish domicile “by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there.” Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989). However, the domicile of minors is usually determined by reference to another person, since minors are considered" }, { "docid": "16840936", "title": "", "text": "that state.” Id.; see also, e.g., Weible v. United States, 244 F.2d 158, 163 (9th Cir.1957) (“Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a, certain definite place one’s permanent abode, though, to be sure, domicile often hangs on the slender thread of intent alone, as for instance where one is a wanderer over the earth.”). In the instant case, Plaintiffs’ original petition stated that “Plaintiffs are adult residents of Saint Louis County, Missouri.” Pét. ¶ 1 (emphasis added). The original petition’s, class definition also spoke of residency, rather than citizenship: Id. ¶ 26 (emphasis added). Defendants, both of whom are Missouri citizens, see id. ¶¶ 2-3, assert “that at least one member of the putative class is presently a resident of Missouri while maintaining citizenship in another state,” Removal Notice ¶ 15. In support of that assertion, Defendants allege that their “insurance programs do not restrict membership to citizens of Missouri,” and that their “members include individuals enrolled in Defendants’ plans as ‘guests’ while resident in Missouri on a semi-permanent or extended basis, but who maintain citizenship ... in other states.” Removal Notice ¶ 15a-b. According to Defendants, in 2014 they enrolled 513 “guest”‘members, whose states of domicile varied from Connecticut to Hawaii. ECF No. 22-1, Déclaration of Val Curry 115. On this basis, Defendants argue that they have established minimal diversity by a preponderance. See Defs. Supp. Br. at 3. Missouri residents whose personal information was compromised as a result of the data breach announced in February 2015 and are (1) current .and former members of a health insurance plan administered by Defendants, and/or (2) current and former Anthem employees. However, on May 14, 2015 — more than one month after Defendants had removed the case to federal court — Plaintiffs filed the FAC, which clarified that Plaintiffs “are citizens of Saint Louis County, Missouri,” not just “residents.” FAC ¶ 1. Plaintiffs also amended the class definition, replacing the word “residents” with “[citizens.” Id. 1125. The class definition in the FAC reads:. Citizens of Missouri whose personal .information was" }, { "docid": "13406175", "title": "", "text": "Brown defendants were not bona fide purchasers of the Hotel and the Boca property. As a remedy, the district court imposed a constructive trust to avoid unjust enrichment, ordering all the defendants to execute irrevocable powers of attorney to an agent to transfer the Hotel and the Boca property into a Mexican government-approved trust, or “fideicomiso,” for the benefit of Brady and Cardwell. Chester Brown appeals from the final judgment as do the other Browns (hereinafter collectively referred to as Brown’s family), who also appeal from the district court’s grant of summary judgment on their counterclaim. DISCUSSION I. Jurisdiction The district court assumed jurisdiction on two grounds, diversity of citizenship and federal question (the RICO claims). Brown, who is representing himself, challenges both. A. Diversity of citizenship This court reviews the existence of subject matter jurisdiction de novo. Reebok Int’l, Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 554 (9th Cir.1992). Brown argues that no diversity of citizenship exists because of his status as a United States citizen residing in Mexico. “In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 2221, 104 L.Ed.2d 893 (1989). Because Brown was domiciled in Mexico, he was thus neither a “citizen of a state” nor an alien under 28 U.S.C. § 1332(a)(3), which confers jurisdiction when a citizen of one state sues both aliens and citizens of other states. Nor was he an alien for the purposes of 28 U.S.C. § 1332(a)(2), which confers jurisdiction when a United States citizen sues aliens only. Brown’s presence as a defendant thus destroyed the complete diversity required for federal jurisdiction. See Newman-Green, Inc., 490 U.S. at 828-29, 109 S.Ct. at 2220-21. We find there was no diversity jurisdiction. B. Pendent jurisdiction The district court’s alternative ground for jurisdiction was its federal question jurisdiction over the RICO claims, under which it could exercise supplemental jurisdiction over Brady and Cardwell’s state law claims." } ]

[ { "docid": "22197037", "title": "", "text": "rendered an individual eligible for asylum and/or withholding of removal. The IJ found that the harm inflicted on Majd did not rise to the level of torture, so relief under CAT was unavailable. Majd appealed to the BIA, contending that the IJ erred in denying him relief, that the rejection of his request for relief contravenes the 1951 Convention Relating to the Status of Refugees, and that the United States’ handling of Palestinian asylum claims such as his violates the ABC Settlement Agreement, which arose out of a class action lawsuit by immigrants of certain nationalities against the immigration authorities. The BIA affirmed without opinion. Majd petitions for review. III. A. Generally, we have authority to review only the decision of the BIA, but where, as here, the BIA summarily affirms the LPs decision without opinion, we review the IJ’s decision. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997). Although we review the legal conclusions of the BIA and the IJ de novo, see id., we review their factual findings for substantial evidence. See Zhang v. Gonzales, 432 F.3d 339, 343-44 (5th Cir.2005). Under the substantial evidence standard, “reversal [of the IJ] is improper unless we decide ‘not only that the evidence supports a contrary conclusion, but [also] that the evidence compels it.’ ” Id. at 344 (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir.2005)). The alien bears the burden of proving the requisite compelling nature of the evidence. See Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994). B. The Attorney General has complete discretion whether to grant asylum to eligible individuals. “[AJsylum is not available to every victim of civil strife, but is restricted to those persecuted for particular reasons.” Hallman v. INS, 879 F.2d 1244, 1247 (5th Cir.1989). To be eligible for asylum, an alien must prove that he is “unable or unwilling to return to ... [his home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Neither discrimination nor harassment ordinarily" } ]

[ { "docid": "22593606", "title": "", "text": "of S-V-, 22 I. & N. Dec. 1306, 1308 (BIA 2000)). Even if an 1-130 petition is pending, the BIA has found that it may grant a motion to reopen if: (1)the motion is timely filed; (2) the motion is not numerically barred by the regulation; (3) the motion is not barred by Matter of Sham, 21 I. & N. Dec. 541 (BIA 1996), or any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the Service either does not oppose the motion or bases its opposition solely on Matter of Arthur [20 I. & N. Dec. 475 (BIA 1992) ]. Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002). The BIA explained that “our decision today does not require Immigration Judges to reopen proceedings pending adjudication of an 1-130 visa petition in every case in which respondent meets all five of the aforementioned factors.” Id. at 257 (emphasis added). 8 C.F.R. § 204.2 sets forth the evidentiary standard for establishing a marriage is bona fide: (B) Evidence to establish eligibility for the bona fide marriage exemption. The petitioner should submit documents which establish that the marriage was entered into in good faith and not entered into for the purpose of procuring the alien’s entry as an immigrant. The types of documents the petitioner may submit include, but are not limited to: (1) Documentation showing joint ownership of property; (2) Lease showing joint tenancy of a common residence; (3) Documentation showing commingling of financial resources; (4) Birth eertificate(s) of child(ren) born to the petitioner and beneficiary; (5) Affidavits of third parties having knowledge of the bona fides of the marital relationship (Such persons may be required to testify before an immigration officer as to the information contained in the affidavit. Affidavits must be sworn to or affirmed by people who have personal knowledge of the marital relationship. Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit and his or her relationship" }, { "docid": "23151198", "title": "", "text": "a continuance or an abeyance of his removal proceedings. The government characterizes an abeyance as an ‘'indefinite continuance,” however, the BIA stated in its opinion that an abeyance \"would have taken the form of administrative closure of proceedings.” It is unclear on what authority the BIA relied in equating Masih’s abeyance request with the administrative closure of proceedings. Having reviewed the case law, we cannot discern any difference in treatment between a request for a \"continuance'' and a request for an \"abeyance.” Therefore, we will analyze Masih's alternative request under the more familiar continuance standard. . Witter v. I.N.S., 113 F.3d 549, 555 (5th Cir.1997). . Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir.1997). . 15 I. & N. Dec. 692 (BIA 1976). . United States v. Ryan-Webster, 353 F.3d 353, 355 (4th Cir.2003). . 8 U.S.C. § 1153(b)(3)(C); Ryan-Webster, 353 F.3d at 355; Ahmed v. Gonzales, 447 F.3d 433, 438 & n. 3 (5th Cir.2006). . 8 C.F.R. § 204.5; Ryan-Webster, 353 F.3d at 356; Ahmed, 447 F.3d at 438 n. 3. . 8 C.F.R. § 245.1(g)(2). . 8 U.S.C. § 1255(i); Ryan-Webster, 353 F.3d at 356. . 8 U.S.C. § 1255(i)(2); Hernandez v. Ashcroft, 345 F.3d 824, 841-42 (9th Cir.2003). . 8 C.F.R. § 245.1(g)(1). . Emphasis added. See Hernandez, 345 F.3d at 843-44 & n. 21 (rejecting contention based on 8 C.F.R. § 245.2(a)(5)(ii) that for petitioner to be eligible for adjustment of status he must actually have been allocated a visa number). . 440 F.3d 678 (5th Cir.2006) (per curiam). . 447 F.3d 433 (5th Cir.2006). . Ali, 440 F.3d at 680. . Ahmed, 447 F.3d at 438 & n. 3. . Id. . Matter of Alphonse, 18 I. & N. Dec. 178, 180 (BIA 1981), superseded by statute, 8 C.F.R. § 3.19(b) (1989), as recognized in Matter of Dobere, 20 I. & N. Dec. 188 (BIA 1990) (\"While not binding on this Board, the prescriptions of the Operations Instructions are often persuasive.”). . 15 I. & N. Dec. 692 (BIA 1976); see also In re Briones, 24 I. & N. Dec. 355, 372 n." }, { "docid": "13690312", "title": "", "text": "her second husband, but the contemporaneous review of that petition by the Department was an entirely separate administrative proceeding. See Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir.1990); Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987) (noting that “[t]he proceedings in which visa petitions are adjudicated are separate and apart from exclusion and deportation proceedings” and that, consequently, “it is well established that immigration judges have no jurisdiction to decide visa petitions, a matter which is solely within the authority of the district director”). Section 1154(c), therefore, had no application to these proceedings, and the IJ’s failure to cite it, or render a decision under it, in no way conflicts with the entirely separate determination that Ms. Reynoso had failed to establish the bona fides of her first marriage in her removal proceedings. The Board’s decision to deny removal of the conditions on Ms. Reynoso’s residency, is, therefore, supported by substantial evidence, and we shall not disturb it. B. Cancellation of Removal 1. Standard of Review In order to demonstrate eligibility for cancellation of removal without the benefit of permanent resident status, an alien must establish various things: physical presence in the United States over a relevant period, absence of certain offenses in any criminal history, extreme hardship to a qualifying relative in the event of removal and good moral character for the ten years preceding the application. 8 U.S.C. § 1229b(b)(l). The IJ concluded that Ms. Reynoso was barred from establishing the requisite good moral character because she had “given false testimony for the purpose of obtaining any benefits under this chapter,” 8 U.S.C. § 1101(f)(6), and the Board affirmed. Ms. Reynoso contends that the Board’s conclusion on this matter was erroneous and asks us to remand the case for full consideration of all of the elements of her cancellation claim. As a threshold matter, we must determine the availability and scope of our review over such a conclusion. Our cases have not always been consistent or clear with respect to setting forth the applicable standards under these circumstances, although we believe they routinely" }, { "docid": "22108718", "title": "", "text": "Quitevis’ close friend, Edgar Franada, testified that Quitevis had confided in him that he had entered into a “paper marriage” with a Russian woman named Galina. Franada never responded to INS counsel’s question about when Qui- tevis actually confided this to him. Frana-da also testified that he lived with Quitevis, along with another roommate, in Quitevis’ aunt’s house from June 1993 to the end of 1994, a time period that spans the duration of Smolniakova’s marriage to Quitevis. At the time of her separation from Qui-tevis, Smolniakova began a relationship with Tony Roland, who accompanied her on her final visit to Russia in the summer of 1995. Roland and Smolniakova were wed in December 1995 and profess to be happily married. On March 4, 1996, Roland filed a Form 1-130 Petition for an Alien Relative visa on behalf of Smolniakova, which was denied based on the marriage-fraud bar for such petitions. See INA § 204(c)(1), 8 U.S.C. § 1154(c)(1). Smolniakova sought review of the INS’s determination that her marriage to Quitevis was a sham pursuant to INA § 216(b)(2), 8 U.S.C. § 1186a(b)(2), and review of her asylum and withholding of removal claims. The IJ found Smolnia-kova incredible as to all claims and denied her petition in its entirety. On March 19, 2003, the BIA affirmed the decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Smolniakova timely appealed. II. Standard of Review Whether Smolniakova married Quitevis in good faith is an intrinsically fact-specific question reviewed under the highly deferential substantial evidence standard. “Under this standard, we must affirm unless the evidence is so compelling that no reasonable fact-finder could fail to find the facts were as [Smolniakova] alleged.” Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir.2004). We also review the BIA’s decision as to whether Smolniakova has established eligibility for asylum under the substantial evidence standard. Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000). Where, as here, the BIA adopts the decision of the IJ and affirms without opinion, we review the decision of the IJ as the final agency determination under the substantial evidence standard set" }, { "docid": "10723199", "title": "", "text": "United States citizenship. A Standard ofRevieio In a removal proceeding for a previously admitted alien, the government “has the burden of establishing by clear and convincing evidence that” Petitioners are removable. 8 U.S.C. § 1229a(c)(3)(A); see, e.g., King v. Holder, 570 F.3d 785, 787 (6th Cir.2009). Where, as here, the BIA reviewed the IJ’s decision de novo and issued its own separate opinion, we review the BIA’s opinion as the final agency determination. Morgan, 507 F.3d at 1057. We review an immigration court’s removability determination under the “substantial evidence” standard. Stolaj v. Holder, 577 F.3d 651, 657 (6th Cir.2009). Under this deferential standard of review, the Board’s decision must be affirmed if it is “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Mullai v. Ashcroft, 385 F.3d 635, 638 (6th Cir.2004) (quoting Koliada v. INS, 259 F.3d 482, 486 (6th Cir.2001)). “We are not entitled to reverse ‘simply because [we are] convinced that [we] would have decided the case differently.’ ” Id. (quoting Adhiyappa v. INS, 58 F.3d 261, 265 (6th Cir.1995)). Instead, the agency’s findings of fact are “conclusive” unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008). In other words, “ ‘in order to reverse the BIA’s factual determinations, the reviewing court must find that the evidence not only supports a contrary conclusion, but indeed compels it.’ ” Mullai, 385 F.3d at 638 (quoting Klawitter v. INS, 970 F.2d 149, 152 (6th Cir.1992)). B. Prior Marriage Finding Nabil was granted an F-24 Immigrant Visa as an unmarried child of a lawful permanent resident. Under 8 C.F.R. § 205.1(a)(3)(i)(I), Nabil (and Sawsan, derivatively) would be deportable (via 8 U.S.C. § 1227(a)(1)(A)) if Nabil and Sawsan were actually married when Nabil entered the United States. Accordingly, the government had the burden to show by clear and convincing evidence that the marriage between Petitioners occurred before their entry into the country. The validity of a marriage is determined by the law of the place" }, { "docid": "13747712", "title": "", "text": "sought, i.e. adjustment of status based on his employment-based petition. However, in order to do so, he first had to show that he is admissible to the United States. See 8 U.S.C. § 1255(a) (stating that an applicant can be granted discretionary adjustment of status if, inter alia, “the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence”). Unfortunately for As-lam, a person is inadmissible if he, by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the United States. See INA § 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C). At the hearing before the IJ, Aslam did not testify that his first marriage to Netola was genuine, nor did he present any evidence refuting Neto-la’s testimony, nor did he present any additional evidence to support a finding that his first marriage was not fraudulent. Thus, we find that the IJ did not err in concluding that the Government met its burden of showing that Aslam is removable from the United States. We also find that the IJ did not err in determining that Aslam could not demonstrate that he was eligible to adjust his status. We therefore deny his request for review on both matters. The BIA’s Summary Affirmance Finally, there is no merit to petitioner’s argument that the BIA abused its discretion by summarily affirming the IJ’s opinion. We have explained that “summary affirmance by the BIA is permissible when the immigration judge’s decision below contains sufficient reasoning and evidence to permit proper judicial review.” Yu Sheng Zhang v. United States DOJ, 362 F.3d 155, 158 (2d Cir.2004); Shunfu Li v. Mukasey, 529 F.3d 141 (2d Cir.2008). Here, the IJ’s decision contained sufficient reasoning to permit judicial review, and therefore it was not an abuse of discretion for the BIA to summarily affirm the IJ’s decision. Conclusion For the foregoing reasons, we deny the petition for review." }, { "docid": "9827793", "title": "", "text": "is not likely to have meant to permit aliens to start over and accrue the entirety of their seven years presence here following termination of the initial period of accrual. Congress has expressed a desire to reduce the time that an alien can prolong his stay following issuance of a deportation order, a goal clearly furthered by the BIA’s interpretation of the stop-time rule. III. Conclusion We accord substantial weight to the manner in which federal agencies interpret the laws that Congress has entrusted to their administration. Our review of the BIA’s decision and the language and legislative history of the stop-time rule satisfies us that the BIA’s interpretation — that an alien does not begin to accrue a new seven-year period of continuous presence in the United States after receiving notice that deportation proceedings have commenced — is a reasonable one. Given the deference that we must accord to the BIA’s interpretations of federal immigration law, we are bound to uphold such interpretations unless they are unreasonable. Discerning nothing unreasonable in the BIA’s interpretation of the stop-time rule, we affirm the decisions of the BIA in the captioned cases. AFFIRMED. . The term “notice to appear” has since replaced the previously employed term “order to show cause.” . 8 U.S.C. § 1229b(d) (West 2000) (the \"INA”). . Mandonna Kashanian McBride v. INS, 995 F.2d 222 (1993). .Milne was divorced from the nonimmigrant student she married prior to 1983. She then married a U.S. citizen but we found, in our above-said unpublished opinion, that she had admiLted that it was a marriage of convenience. After another divorce, she, married her current husband, a marriage that is uncontested as “bona fide.” Her request for legal permanent resident status based on this marriage was denied under INA § 204(c) which precludes approval based on even an admittedly good-faith union if the petitioner had previously contracted an improper marriage. . 8 U.S.C. § 1101 note (West 2000). . Int. Dec. 3309 (BIA 1997). . 8 U.S.C. § 1254(a) (West 2000). . The government does not contest that each petitioner has been continuously present" }, { "docid": "23070744", "title": "", "text": "entitled to withholding of removal under the CAT. The IJ granted Zhu voluntary departure with an alternate order of removal to China. Zhu appealed to the BIA. On December 9, 2002, the BIA affirmed “without opinion, the result of the decision below.” Citing 8 C.F.R. § 3.1(e)(4). Zhu filed a timely petition for review of the BIA decision on December 19, 2002. Zhu also filed with the BIA a motion to reconsider. The BIA denied Zhu’s motion. She has not filed a petition for review of that decision. DISCUSSION An alien is required to file an application for asylum within one year after the date of the alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Section 1158(a)(2)(D) excuses an alien’s delay in filing an application if the alien demonstrates “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay.” Id. § 1158(a)(2)(D). Section 1158(a)(3) provides that “[n]o court shall have jurisdiction” to review a determination by the Attorney General that an application is untimely. Id. § 1158(a)(3). Zhu argues that the BIA’s affirmance without an opinion leaves unclear whether the BIA affirmed the IJ’s denial of her application for asylum because it deemed her application untimely and ineligible for the exceptions that Zhu argued or because the BIA rejected the merits of the asylum application and affirmed without opinion because the IJ’s error, if any, on the timeliness issue was deemed “harmless or nonmaterial.” This Circuit has not yet explicitly addressed whether it has jurisdiction to review a BIA board member’s decision to affirm without opinion according to the procedure outlined in 8 C.F.R. § 1003.1(e)(4). Three unpublished decisions indicate that this Court has jurisdiction to review the BIA’s decision to affirm without opinion. See Dika v. Ashcroft, 85 Fed.Appx. 374, 375 (5th Cir.2004) (unpublished); Turribiartes-Vitales v. Ashcroft, 75 Fed.Appx. 312, 313-14, slip op. at 2-3 (5th Cir.2003) (unpublished); Patel v. Ashcroft, 71 Fed.Appx. 306 (5th Cir.2003) (unpublished); see also 5th Cir. R. 47.5.4 (stating that while not controlling, an unpublished opinion may be persuasive authority). One" }, { "docid": "21990198", "title": "", "text": "was immediately available, and second, Hadayat had failed to comply with the voluntary departure order. Subhan, therefore, does not support Hadayat’s petition for review. Nor does the BIA’s decision in Matter of Velar de-Pacheco, 23 I & N Dec. 253 (BIA 2002), offer much help for Hadayat’s claim. In that case, the BIA held that a properly filed motion to reopen, seeking adjustment of status based on a marriage petition, may be granted “in the exercise of discretion” as long as certain specified criteria are met. Id. at 256. The BIA based its decision' in part on its reading of “Congress’ legislative intent in amending the marriage fraud provisions: that aliens who marry after proceedings have been initiated, and who seek adjustment of status, should be afforded one opportunity to present clear and convincing evidence that their marriage is bona fide.” Id. at 257. Hadayat seems to argue that the fact that the BIA treats marriage applications with relative liberality means it must do the same for his petition. But nothing in the statute requires this type of parity. Since Congress has expressed its desire to treat marriage petitions differently from other family petitions, see, e.g., 8 U.S.C. § 1154, it is not unreasonable for the BIA to establish special procedures for the consideration of marriage petitions. B Hadayat next contends that his failure to comply with the voluntary departure order should not render him ineligible to adjust his status, arguing that the departure period should have been stayed pending the resolution of his motion to reopen. Although the unavailability of a visa constituted a sufficient ground for the BIA to affirm the IJ’s denial of the motion to reopen, whether Hadayat violated the voluntary departure order is relevant to whether his future admission to the United States is barred. We therefore discuss the issue briefly. “Voluntary departure confers substantial benefits compared with involuntary removal, and this difference provides an incentive to depart without dragging out the process and without requiring the agency and courts to devote resources to the matter.” Alimi v. Ashcroft, 391 F.3d 888, 892 (7th Cir.2004)." }, { "docid": "23188607", "title": "", "text": "did not submit an application for relief or any supporting documentation (other than a copy of the visa petition filed by his wife on his behalf). Moreover, he made no allegation that he was eligible to receive a visa, that he was admissible to the United States for permanent residence, that a visa was immediately available to him, or that his removal would result in extreme hardship to his wife. In light of these omissions, the BIA did not err in ruling that the petitioner failed to make a prima facie showing of eligibility for either a waiver of inadmissibility or an adjustment of status. See generally 8 U.S.C. §§ 1182(h)(1)(B), 1255(a). Even if the petitioner had properly asserted these claims before the BIA — which he did not — he could not demonstrate eligibility for the requested relief. An adjustment of status may be granted only where an immigrant visa is immediately available to the alien “at the time his application [for adjustment] is filed.” 8 U.S.C. § 1255(a). The BIA found — and the petitioner’s counsel conceded at oral argument — that no visa was available to the petitioner at the time of his submission to the BIA. Thus, the petitioner was statutorily ineligible for that form of relief. See id. Notwithstanding these gaping holes in his submission, the petitioner insists that the BIA’s decision in Matter of Velarde-Pacheco, 23 I & N Dec. 253, 2002 WL 393173 (BIA 2002), dictates a contrary result. We do not agree. The INA grants special rights and priorities to an alien who marries a United States citizen or lawful permanent resident. See, e.g., 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(2), 1182(h)(1)(B). However, if the marriage takes place during the pendency of “administrative or judicial proceedings ... regarding the alien’s right to be admitted or remain in the United States,” id. § 1255(e)(2), the alien may receive an immediate adjustment of status based on the spousal relationship only if he demonstrates, by clear and convincing evidence, that the marriage was bona fide, see id. § 1255(e)(3). The BIA considers the approval of the spouse’s" }, { "docid": "23556713", "title": "", "text": "this bar with a heightened evidentiary burden to establish the bona fides of the marriage, the BIA reasoned that “Congress rather clearly created a presumption that marriages contracted after the institution of exclusion or deportation proceedings are fraudulent.” In re Arthur, 20 I. & N. Dec. at 478-479. Given this legislative history, it appears that Congress’s intent in amending the marriage fraud provisions was to provide aliens who marry during removal proceeds “one opportunity to present clear and convincing evidence that their marriage is bona fide.” In re Velarde-Pacheco, 23 I. & N. Dec. at 257. Absent a showing of clear and convincing evidence, the marriage is presumed fraudulent. In re Arthur, 20 I. & N. Dec. at 479. Though Malilia would have us characterize the heightened burden of proof on the alien as something different from a presumption, it is not. All a presumption does, if it is rebuttable, as this one is, is to establish which side has the burden of proof. In this case, the burden of proof is heightened by the “clear and convincing evidence” requirement. Therefore, the IJ did not make an error of law in character izing Malilia’s marriage as presumptively fraudulent. Second, Malilia’s continuance request was denied partly because the IJ speculated that the approval process could take months or even years. But delays in the USCIS approval process are no reason to deny an otherwise reasonable continuance request. As we have stated before, basing a denial on such grounds is akin to “blaming a petitioner for an administrative agency’s delay.” Ahmed v. Holder, 569 F.3d 1009, 1013 (9th Cir.2009). Malilia should not have to bear the ultimate cost for USCIS’s inefficiencies. If approval can wait, then surely removal can also wait. There is no evidence that Malilia was dangerous or that Malilia needed to be removed quickly. In fact, the government waited nearly 10 years before serving Malilia with a Notice to Appear. In that context, one continuance to afford USCIS the opportunity to adjudicate a pending I-130 application is surely reasonable. Although it came down subsequently, the BIA decision in In" }, { "docid": "15039777", "title": "", "text": "a petition in a separate proceeding seeking to classify Mr. Rezai as an alien relative for the issuance of an immigrant visa. Although the INS district director did not question the validity of Mr. Rezai’s marriage to Ms. Weg-ner, he denied the petition because substantial and probative evidence suggested that Mr. Rezai had previously attempted to obtain immigration benefits through a fraudulent marriage. See 8 U.S.C. § 1154(c). Ms. Wegner has appealed this decision to the BIA. As Ms. Wegner’s visa petition made its way through the proper INS channels, the BIA reviewed Mr. Rezai’s appeal of his deportation order and his motion to remand. Because the couple married after the commencement of Mr. Rezai’s deportation proceedings, the BIA denied his motion for remand on the basis of its rule announced in Matter of Arthur, Interim Dec. 3173, 1992 WL 195807 (BIA). Mr. Rezai now asserts that the Arthur rule is unconstitutional. We disagree. “A motion to reopen deportation proceedings to consider a newly-acquired claim of relief from deportation will generally be denied where the moving party fails to make a prima facie showing of eligibility for the relief sought.” Pritchett v. I.N.S., 993 F.2d 80, 83 (5th Cir.) (per curiam), cert. denied, — U.S. -, 114 S.Ct. 345, 126 L.Ed.2d 310 (1993) (citing I.N.S. v. Doherty, 502 U.S. 314, 323, 116 L.Ed.2d 823, 112 S.Ct. 719, 724-25 (1992)). In 1978, the BIA held that a pending visa petition which is prima facie approvable is sufficient to make a prima facie showing for purposes of the motion to reopen. In re Garcia, 16 I & N Dec. 653 (BIA 1978). Under the Garcia rule, the BIA presumed that a marriage between an alien and a United States citizen was legitimate and granted the motion to reopen deportation proceedings even before adjudication of the petition for immediate relative status. Congress changed the landscape on this issue by amending the procedures by which visa petitions are adjudicated. In 1986, Congress provided that “a petition may not be approved to grant an alien immediate relative status ... by reason of a marriage which" }, { "docid": "22428592", "title": "", "text": "twice after being apprehended by the INS, which the IJ held to constitute breaks in his continuous physical presence as a matter of law. In addition, the IJ found that Garcia failed to prove that his children would suffer exceptional and extremely unusual hardship if he were removed. Garcia appealed the IJ’s decision to the BIA. The BIA summarily affirmed the IJ’s decision without opinion, pursuant to 8 C.F.R. § 1003.1(a)(7). Garcia timely appealed, invoking our jurisdiction to review a final order of removal under section 242(a)(1) of the INA, 8 U.S.C. § 1252(a)(1). II. JURISDICTION The relief that Garcia sought is cancellation of removal under section 240A(b) of the INA. Under 8 C.F.R. § 1003.1(a)(7)(iii), the underlying decision of the IJ, not the BIA’s summary affir-mance, is the proper subject of judicial review. See Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir.2003) (citing 64 Fed.Reg. 56,135, 56,137 (Oct. 18, 1999)); see also Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997) (noting that when the BIA affirms without explanation, the court reviews the IJ’s decision). Therefore, we must determine whether we have jurisdiction to review the IJ’s decision to deny cancellation of removal. We review our subject matter jurisdiction de novo. See Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). As noted earlier, the Attorney General has discretion to cancel the removal of a non-permanent resident if the alien has shown (1) a continuous physical presence of not less than 10 years; (2) good moral character; (3) a lack of certain criminal convictions; and (4) exceptional and extremely unusual hardship to a qualifying relative. INA § 240A(b); 8 U.S.C. § 1229b(b). Judicial review of his decision is governed by section 242(a)(1) of the INA, which provides generally for “judicial review of a final order of removal.” 8 U.S.C. § 1252(a)(1). Section 242(a)(2)(B) of the INA, however, limits judicial review of certain discretionary decisions made in immigration proceedings. 8 U.S.C. § 1252(a)(2)(B). This section, entitled “Denials of discretionary relief,” deprives the courts of jurisdiction over certain" }, { "docid": "23188608", "title": "", "text": "the petitioner’s counsel conceded at oral argument — that no visa was available to the petitioner at the time of his submission to the BIA. Thus, the petitioner was statutorily ineligible for that form of relief. See id. Notwithstanding these gaping holes in his submission, the petitioner insists that the BIA’s decision in Matter of Velarde-Pacheco, 23 I & N Dec. 253, 2002 WL 393173 (BIA 2002), dictates a contrary result. We do not agree. The INA grants special rights and priorities to an alien who marries a United States citizen or lawful permanent resident. See, e.g., 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(2), 1182(h)(1)(B). However, if the marriage takes place during the pendency of “administrative or judicial proceedings ... regarding the alien’s right to be admitted or remain in the United States,” id. § 1255(e)(2), the alien may receive an immediate adjustment of status based on the spousal relationship only if he demonstrates, by clear and convincing evidence, that the marriage was bona fide, see id. § 1255(e)(3). The BIA considers the approval of the spouse’s visa petition on the alien’s behalf “primary evidence of eligibil ity for the bona fide marriage exemption.” 8 C.F.R. § 1245.1(c)(9)(v). Prior to Velarde-Pacheco, the BIA had ruled that, in intervening marriage cases, a motion to reopen grounded upon the citizen-spouse’s visa petition could be granted only if the petition already had been approved. See Matter of Arthur, 20 I & N Dec. 475, 477, 1992 WL 195807 (BIA 1992). To mitigate the sometimes harsh effect of this rule, the BIA reversed course in Ve-larde-Pacheco and held that, in such cases, a properly filed motion to reopen based upon the citizen-spouse’s pending but unadjudicated visa petition may be granted as a matter of discretion. 23 I & N Dec. at 256. The BIA added, however, that this form of relief is not automatic; the decision to grant or deny it remains discretionary, and such relief continues to be unavailable to an alien whose motion to reopen is barred on “any ... procedural grounds.” Id. Those grounds include the failure to make a prima facie showing" }, { "docid": "19968607", "title": "", "text": "that the Interim Rule affords for an arriving alien in removal proceedings to establish his eligibility for adjustment based on a bona fide marriage is rendered worthless where the BIA, as it purports to do in the present case, denies a motion to reopen (or continue) that is sought in order to provide time for USCIS to adjudicate a pending application. Without a reopening or a continuance, an alien is subject to a final order of removal, despite the fact that he may have a prima facie valid 1-130 or adjustment application pending before USCIS. If an alien is removed, his adjustment application is deemed abandoned. 8 C.F.R. § 245.2(a)(4)(ii)(A). The alien cannot reapply for adjustment of status until he has reentered the United States, which he is barred from doing for ten years. 8 C.F.R. § 245.1(a); 8 U.S.C. § 1182(a)(9)(A)(ii). The BIA’s denial of Petitioner’s motion to reopen on jurisdictional grounds is also contrary to the Board’s general policy of favorably exercising its discretion to grant motions to reopen on the basis of an unad-judicated 1-130 petition. See In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256-57 (BIA 2002) (en banc); Matter of Garcia, 16 I. & N. Dec. 653, 657 (BIA 1978), modified on other grounds by Matter of Arthur, 20 I. & N. Dec. 475 (BIA 1992) (providing that “discretion should, as a general rule, be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of a deportation hearing or upon a motion to reopen.”). We therefore hold that the BIA abused its discretion in denying Petitioner’s motion to reopen and remand for an exercise of the agency’s discretion that takes into consideration the factors set forth in Velarde-Pacheco, 23 I. & N. Dec. at 256. c. For the reasons set forth above, we DISMISS the petition insofar as it seeks review of Petitioner’s claim to asylum and request for voluntary departure over which we lack jurisdiction, DENY the petition with respect to the agency’s denial of withholding of removal, and GRANT the petition and REMAND" }, { "docid": "16001122", "title": "", "text": "second wife, Fatima Gill Syed (whom he married less than one month after his divorce from Hiraldo), filed an immediate relative visa petition on his behalf. The INS approved the visa in September 1998, and Syed subsequently requested that the BIA remand his case to allow him to apply for an adjustment of status based on the visa. The BIA granted Syed’s motion on March 6, 2000, remanding the case to the IJ to consider whether Syed was eligible to adjust his status and with instructions that Syed be given a further opportunity to present evi dence that his first marriage was bona fide. On remand, the IJ found that Syed was ineligible for an adjustment of status because of his previous fraudulent marriage and that the INS should not have approved the immediate relative visa petition because Syed had “previously ... sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States ... by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c)(1). However, the IJ certified the question of whether Syed’s first marriage was fraudulent to the BIA pursuant to Syed’s previously filed appeal. The BIA affirmed both the IJ’s September 1997 conclusion that Syed’s first marriage was fraudulent and the IJ’s December 2000 conclusion that Syed was ineligible for a status adjustment on this basis. Syed now appeals. He does not dispute that a fraudulent first marriage would render him ineligible for an adjustment of status. Rather, his appeal is based solely on the claim that the IJ and BIA erroneously concluded that he entered into his first marriage for the purpose of obtaining immigration benefits. II. Our review of factual findings and credibility determinations by an IJ is deferential. Mendes v. INS, 197 F.3d 6, 13 (1st Cir.1999); Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir.1990). We will uphold the BIA’s affirmance of an IJ’s decision so long as it is “supported by reasonable, substantial, and probative evidence on" }, { "docid": "22216039", "title": "", "text": "should have granted the motion (thereby allowing Scheerer to return to the United States pursuant to his prior agreement with DHS) and continued his case until USCIS had an opportunity to pass on his adjustment application. In support of this argument, Scheerer and the amicus cite several cases in which we found an abuse of discretion in the denial of a continuance during the pen-dency of a visa petition where the alien was seeking adjustment of status. See Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1218 (11th Cir.2006) (per curiam); Merchant v. U.S. Att’y Gen., 461 F.3d 1375, 1379 (11th Cir.2006); Bull v. INS, 790 F.2d 869, 872 (11th Cir.1986) (per cu-riam). Scheerer and the amicus also direct our attention to In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002), in which the BIA held that, where certain five factors are met, a motion to reopen may be granted to provide an alien the opportunity to pursue an adjustment application based on a marriage entered into after the commencement of proceedings. Scheerer’s reliance on these decisions is misplaced, however, because the petitioners involved were not arriving aliens and thus were subject to a different regulatory framework than that which governs here. Under the applicable regulations, the petitioners in the earlier decisions were entitled to initiate or renew adjustment applications with the immigration court during removal proceedings. See 8 C.F.R. § 1245.2(a)(1)®, (a)(6)(H). Thus, continuances were warranted in those cases because an IJ would have authority to adjudicate the petitioners’ respective applications once the statutory prerequisites to adjustment of status were satisfied. By contrast, under 8 C.F.R. § 1245.2(a)(1)(h), the immigration courts have no jurisdiction over adjustment applications filed by aliens in Scheerer’s position. Therefore, his application would never return to the immigration courts even if denied by USCIS. Given these circumstances — in which there is no possibility that Scheerer’s adjustment application would be adjudicated during removal proceedings — the BIA did not abuse its discretion in denying Scheerer’s motions. Scheerer and the amicus also contend that the BIA’s decisions conflict with the intent of the" }, { "docid": "23151197", "title": "", "text": "the BIA’s cursory — -and curious — disregard of Matter of Ho, we hold that the BIA abused its discretion in denying Masih’s request for a continuance or abeyance of his removal proceedings. As we are reluctant to infringe on the discretion of the BIA and the IJ, we re mand this matter to the BIA for it to remand to the IJ with instructions to reconsider Masih’s request ab initio, giving due consideration to this opinion and to 01 245.4(a)(6) and Matter of Ho. III. CONCLUSION We grant Masih’s petition for review, reverse the decision of the BIA, and remand to the BIA with instructions to remand to the IJ for him to reconsider Ma-sih’s request for a continuance or abeyance of his removal proceedings so that he may pursue adjustment of status. . Operations Instruction 245.4(a)(6) states that ''[w]hen a properly filed application cannot be completed solely because visa numbers became unavailable subsequent to the filing, the application will be held in abeyance until a visa number is allocated.” . Masih requests either a continuance or an abeyance of his removal proceedings. The government characterizes an abeyance as an ‘'indefinite continuance,” however, the BIA stated in its opinion that an abeyance \"would have taken the form of administrative closure of proceedings.” It is unclear on what authority the BIA relied in equating Masih’s abeyance request with the administrative closure of proceedings. Having reviewed the case law, we cannot discern any difference in treatment between a request for a \"continuance'' and a request for an \"abeyance.” Therefore, we will analyze Masih's alternative request under the more familiar continuance standard. . Witter v. I.N.S., 113 F.3d 549, 555 (5th Cir.1997). . Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir.1997). . 15 I. & N. Dec. 692 (BIA 1976). . United States v. Ryan-Webster, 353 F.3d 353, 355 (4th Cir.2003). . 8 U.S.C. § 1153(b)(3)(C); Ryan-Webster, 353 F.3d at 355; Ahmed v. Gonzales, 447 F.3d 433, 438 & n. 3 (5th Cir.2006). . 8 C.F.R. § 204.5; Ryan-Webster, 353 F.3d at 356; Ahmed, 447 F.3d at 438 n. 3. ." }, { "docid": "2947530", "title": "", "text": "for such a long period of time.... [T]he father-in-law has held these attitudes from years back and, therefore, he was probably as racist in 1986 as he was in 1996, so there is no explanation as to why these attacks against her family suddenly began in 1996. The IJ concluded: “Therefore, ... the Court finds that the respondent has failed to meet her burden of proving, of demonstrating that she and.her family suffered persecution in South Africa based on any of the five statutory grounds whether it is race or political opinion.” The petitioners filed a timely appeal to the BIA. On May 16, 2002, the BIA affirmed the decision of the IJ without opinion. The petition for review was filed with this court on June 11, 2002. STANDARD OF REVIEW We review the BIA’s decision that an alien has not established eligibility for asylum or withholding of removal to determine whether it is supported by substantial evidence. Wang v. Ashcroft, 341 F.3d 1015, 1019-20 (9th Cir.2003); see also Monjaraz-Munoz v. I.N.S., 327 F.3d 892, 895 (9th Cir.2003) (“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.”). While purely legal issues are reviewed de novo, the BIA’s interpretation of immigration laws is entitled to deference. Kankamalage v. I.N.S., 335 F.3d 858, 861-62 (9th Cir.2003). Where, as here, the BIA affirms the results of the IJ’s decision without issuing an opinion, see 8 C.F.R. § 1003.1(a)(7), we review the IJ’s decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003). ANALYSIS A. Relevant Legal Standards 1. Asylum The Attorney General may grant asylum to an alien who qualifies as a refugee, that is, one who is unable or unwilling to return to her home country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). Persecution is “ ‘the infliction of suffering or harm upon those who differ (in race, religion or political" }, { "docid": "19968611", "title": "", "text": "decision-makers, who initially adjudicated his asylum application on the merits rather than denying it as untimely. . We note that if, on remand, the BIA determines that Petitioner filed a frivolous asylum application, this determination would preclude Petitioner from eligibility to adjust his status. See 8 U.S.C. § 1158(d)(6) (rendering an alien who files a frivolous asylum application permanently ineligible for any future immigration benefits). . Velarde-Pacheco provides that a \"properly filed motion to reopen may be granted, in the exercise of discretion, to provide an alien an opportunity to pursue an application for adjustment where the following factors are present: (1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the Service either does not oppose the motion or bases its opposition solely on Matter of Arthur.” 23 I. & N. Dec. at 256. We note that even if these factors are present, the decision of whether or not to grant the motion to reopen remains within the BIA’s discretion. See id. at 256 (explaining that \"[e]very application necessarily requires examination of the relevant factors and a determination of the weight such factors should be accorded in the exercise of discretion....”). See also 71 Fed.Reg. at 27589 (comments published with \"Interim Rule”) (\"While noting that it will ordinarily be appropriate for an immigration judge to exercise his or her discretion favorably to grant a continuance or motion to reopen in the case of an alien who has submitted a prima facie approvable visa petition and adjustment application in the course of a deportation hearing ... an immi gration judge has discretion in an appropriate case to deny a continuance....”). . On remand, the agency may consider Petitioner's request in light of the Interim Rule as a request for a continuance or a stay of proceedings pending USCIS's adjudication" } ]

[ { "docid": "20390299", "title": "", "text": "to complete most of the work that Goguen had “left undone.” And, the state judge added, Sharfarz would have to spend another $25,000 to finish the project. So the state judge set Sharfarz’s damages at $88,000, which he trebled to $264,000 as state law allowed, and set Sharfarz’s attorney fees and costs at $8,745.50. Ultimately, then, the state judge awarded Sharfarz judgment in the amount of $272,745.50. At some point Goguen filed for bankruptcy under Chapter 7 of the Bankruptcy Code. Quite predictably, Sharfarz reacted by petitioning to have his judgment against Goguen declared nondischargeable, relying on a Bankruptcy Code provision that bars discharge of “any debt ... for money ... to the extent obtained by ... false pretenses, a false representation, or actual fraud....” 11 U.S.C. § 523(a)(2)(A). Both Sharfarz and Goguen (who represented himself) took the stand during the trial before the bankruptcy judge. Sharfarz testified in line with the facts as we have presented thém. Goguen disagreed with pretty much everything Sharfarz said, and he blamed the project’s failure on his misestimating what it would cost to do the job. And he owned up to some project mismanagement too. No one else testified. Having heard from them and examined the exhibits, the bankruptcy judge sided with Sharfarz. His reasoning ran this way. Accurately stating the law, the bankruptcy judge stressed that a creditor must establish six things to exclude a debt from discharge under this provision: 1) the debtor made a knowingly false representation or one made in reckless disregard of the truth, 2) the debtor intended to deceive, 3) the debtor intended to induce the creditor to rely upon the false statement, 4) the creditor actually relied upon the false statement, 5) the creditor’s reliance was justifiable, and 6) the reliance upon the false statement caused damage. In re Spigel, 260 F.3d 27, 32 (1st Cir.2001) (footnote omitted) (explaining that the first two components of this “test describe conduct and scienter required to show fraudulent conduct generally” while “the last four embody the requirement that the claim of the creditor arguing nondischargeability in an adversary proceeding" } ]

[ { "docid": "18168172", "title": "", "text": "element of section 523(a)(2)(B): whether O’Donnell “caused [the “writing,” i.e., the PFS] to be made or published with intent to deceive.” See § 523(a)(2)(B)(iv). The gist of O’Donnell’s argument is straightforward enough: Despite what the bankruptcy judge thought, one cannot conclude that O’Donnell “caused” the PFS — which he neither reviewed nor signed — “to be made or published,” because Smith was functioning as Toye’s agent. And with this PFS the work of a runaway Smith, one also cannot conclude that O’Donnell intended to deceive Toye with a shady PFS. Toye disagrees, naturally. And we do too. Analysis Take the agency issue. To give his claim about Smith’s being Toye’s agent an aura of plausibility, O’Donnell plays up how Smith and Toye had known each other for years and how Smith had made Toye money three or four times by helping him lend others money before this deal went south. But the problem for O’Donnell is that other evidence cuts against him. Recall how Smith had helped O’Donnell and Ferrante on some deals right before the deal at issue, then how the duo had enlisted his help in getting the $850,000 loan, and finally how they had relied on him to prepare the necessary documents for all three transactions. The bankruptcy judge chose to accept this evidence in deeming Smith O’Donnell’s agent on this loan. And the judge’s view seems entirely plausible, certainly not “wrong with the force of a 5 week old, unrefrigerated, dead fish,” which is what O’Donnell had to — but did not— show to get anywhere. See S Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir.2001). Ultimately, then, we are in no position to undo the judge’s agency determination. See Goguen, 691 F.3d at 69. Wait a second, O’Donnell says. Smith had “acted on his own” in drafting up the false PFS, which means that the bankruptcy judge clearly stumbled in finding that O’Donnell had “caused” that document “to be made or published” to Toye — at least that is what O’Donnell writes. But what dooms this theory is that the judge" }, { "docid": "18168166", "title": "", "text": "the accuracy of this financial information. Smith also managed to get other relevant data from other documents (credit reports, mortgage statements, tax-assessment records, etc.) he already had on file or had dug up through public-record searches he had conducted for this deal. He cannot definitively say how he got some of the documents, however. Nor can he say for sure whether he sent O’Donnell a copy of the PFS, whether he reviewed every aspect of the PFS with him, or whether he saw him sign the PFS. But he does remember emailing a signed copy of O’Donnell’s PFS, along with Ferrante’s, to Toye. For his part, O’Donnell insists that he never reviewed the PFS, that the signature on the PFS is not his, and that he never authorized anyone to send the PFS to Toye. What everyone now agrees on, however, is that O’Donnell’s PFS was “materially false,” containing serious misrepresentations and omissions regarding his income and assets. Wowed by O’Donnell’s (supposed) net worth, Toye lent the O’Donnell/Ferrante LLC the $350,000, receiving a promissory note in that amount (at 13.50% interest) from the LLC secured by a mortgage on some property and by O’Donnell’s and Ferrante’s personal guaranties. Unfortunately, the LLC did not pay the loan as required. And Toye ended up turning to O’Donnell, who, also unfortunately, defaulted on his personal-guaranty obligations. A Wave of Litigation Unwilling to take this lying down, Toye sued O’Donnell in state court on the personal guaranty. O’Donnell (supposedly) first saw the false PFS here, in state court. Eventually that court granted Toye summary judgment and entered a $417,974 judgment against O’Donnell. Later, O’Donnell sought bankruptcy protection under Chapter 7 of the Bankruptcy Code. Toye responded by initiating this adversary proceeding in the bankruptcy court, alleging most relevantly here that O’Donnell’s debt to him was nondischargeable per section 523(a)(2)(B). Under this provision (the reader will recall), if a statement about a debtor’s “financial condition” is in a “writing” that is “materially false” and is “reasonably relied” on by the creditor, and if the debtor “caused [that statement] to be made or published with intent" }, { "docid": "18168174", "title": "", "text": "expressly found that Smith had acted on O’Donnell’s “authority” and “instruction.” And our patient review of the record leaves us convinced that the judge’s view of the evidence is a permissible one: Keep in mind that O’Donnell is a savvy businessman. He knew that Toye needed a personal guaranty. He knew too that that would require a PFS without (he must have known) omissions. So O’Donnell gave Smith some financial information for the PFS, tasking him with doing whatever was necessary to get the loan done (more on this in a moment). And he knew from past experience that that would result in Smith’s preparing the PFS and sending it to Toye — or so at least a factfinder could infer. Ever mindful that the clear-error standard leaves us no room to second-guess the trier’s choices among plausible inferences, we easily reject O’Donnell’s Smith-went-rogue thesis, which necessarily means that the rest of his argument on this score fails. See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (holding that if, on whole-record review, the lower court’s “account of the evidence is plausible,” then we “may not reverse it even though convinced that had [we] been sitting as the trier of fact, [we] would have weighed the evidence differently”). That leaves the “intent to deceive” issue, with O’Donnell protesting that the bankruptcy judge rested the intent-to-deceive findings on air, basically. He reminds us, for starters, that he had neither reviewed nor signed the false PFS before Smith emailed it to Toye. Yes, but intent to deceive under section 523(a)(2)(B) may be demonstrated by the debtor’s knowledge of, reckless indifference to, or reckless disregard for the written statement’s falsity. See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh v. Bonnanzio (In re Bonnanzio), 91 F.3d 296, 301 (2d Cir.1996); Ins. Co. of N. Am. v. Cohn (In re Cohn), 54 F.3d 1108, 1118-19 (3d Cir.1995) (citing additional cases from the 6th, 10th, and 11th Circuits); Morrison v. W. Builders of Amarillo, Inc. (In re Morrison), 555 F.3d 473, 482 (5th Cir.2009). Our caselaw" }, { "docid": "18168162", "title": "", "text": "THOMPSON, Circuit Judge. Overview David O’Donnell wants what every debt- or in bankruptcy wants — a fresh start. You see, a debtor generally gets a discharge from debts owed at the time he files his bankruptcy petition. See 11 U.S.C. § 727(b). But this fresh-start opportunity is only for “the honest but unfortunate debtor.” Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (internal quotation marks omitted). And that is why Congress enacted a number of exceptions to discharge. One makes debts for money procured by use of a written statement nondischargeable-provided that that statement was “materially false,” related to the “debtor’s ... financial condition,” and “reasonably relied” on by the creditor, and provided also “that the debtor caused [it] to be made or published with intent to deceive....” 11 U.S.C. § 523(a)(2)(B). An honest but unfortunate debtor O’Donnell is not-or so a bankruptcy judge, relying on this exception, ruled after a trial in a pro ceeding between O’Donnell and one of his creditors, Thomas Toye III. The bankruptcy appellate panel (“BAP,” for short) later affirmed. Now O’Donnell asks us to hold that the bankruptcy judge got it all wrong. What follows is our explanation of why this ruling must stand. How the Case Got Here Fishy Financials O’Donnell is an experienced real estate developer, jumping into the field in the late 1990s. Eventually he teamed up with Rudy Ferrante (a childhood friend), and the two began acquiring real estate together, apparently through “LLCs” (limited-liability companies, for the uninitiated). The pair were quite busy in the late 2000s, doing multiple deals. We discuss three-including the one that landed O’Donnell in this mess — to give a sense of what the trial was about. All three occurred within months of each other and featured Kevin Smith in a starring role. A longtime acquaintance of Ferrante (they had once worked together as brokers at the Lenders Network), Smith’s supposed forte is real-estate financing. The first deal involved team O’Donnell/Ferrante’s bid to refinance a piece of commercial property already in their portfolio. The second involved their attempt to" }, { "docid": "18168173", "title": "", "text": "the deal at issue, then how the duo had enlisted his help in getting the $850,000 loan, and finally how they had relied on him to prepare the necessary documents for all three transactions. The bankruptcy judge chose to accept this evidence in deeming Smith O’Donnell’s agent on this loan. And the judge’s view seems entirely plausible, certainly not “wrong with the force of a 5 week old, unrefrigerated, dead fish,” which is what O’Donnell had to — but did not— show to get anywhere. See S Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir.2001). Ultimately, then, we are in no position to undo the judge’s agency determination. See Goguen, 691 F.3d at 69. Wait a second, O’Donnell says. Smith had “acted on his own” in drafting up the false PFS, which means that the bankruptcy judge clearly stumbled in finding that O’Donnell had “caused” that document “to be made or published” to Toye — at least that is what O’Donnell writes. But what dooms this theory is that the judge expressly found that Smith had acted on O’Donnell’s “authority” and “instruction.” And our patient review of the record leaves us convinced that the judge’s view of the evidence is a permissible one: Keep in mind that O’Donnell is a savvy businessman. He knew that Toye needed a personal guaranty. He knew too that that would require a PFS without (he must have known) omissions. So O’Donnell gave Smith some financial information for the PFS, tasking him with doing whatever was necessary to get the loan done (more on this in a moment). And he knew from past experience that that would result in Smith’s preparing the PFS and sending it to Toye — or so at least a factfinder could infer. Ever mindful that the clear-error standard leaves us no room to second-guess the trier’s choices among plausible inferences, we easily reject O’Donnell’s Smith-went-rogue thesis, which necessarily means that the rest of his argument on this score fails. See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518" }, { "docid": "18168177", "title": "", "text": "Far from it. He knew that Toye wanted a personal guaranty. And because a guaranty is only worth something if the lender knows the borrower’s financial status, he knew (and this is easily inferable) that Toye would want a comprehensive PFS providing the truth, the whole truth, and nothing but the truth — otherwise, why ask for one? “[G]o ahead and give [Toye] what he needs,” were O’Donnell’s marching orders to Smith, the judge found, which suggests that O’Donnell took a hands-off approach to the PFS (just like he had before). True, he did give Smith some financial items. But, as his lawyer candidly conceded at oral argument, O’Donnell did not give Smith enough data to produce a complete PFS, which meant (and this is easily inferable too) that Smith had to come up with the missing information. Also, a trier could draw a strong inference — as this one did — that O’Donnell knew that Toye had gotten the PFS. O’Donnell knew this (at least inferentially) probably by the time Toye had approved the loan, and certainly by the time Toye had dispersed the loan proceeds (remember, Toye wanted O’Donnell’s PFS before making the loan). And yet O’Donnell never even tried to check his agent’s work at any point, bolstering the judge’s finding that he had “willfully turned a blind eye,” “not caring” what the PFS said — though he clearly cared a lot about getting his hands on Toye’s money, which he “happily” took after “set[ting]” the false PFS “in motion.” Searching for a way out, O’Donnell complains that there is zero evidence of his giving Smith carte blanche, which, he argues, undercuts the intent-to-deceive findings. Hardly. A factfinder could infer— as this one apparently did — that O’Donnell’s directing Smith to do the paperwork and then not ever asking to see it shows a carte-blanche attitude. O’Donnell also grumbles that he gave Smith accurate information, which, he maintains, cripples the intent-to-deceive findings. Not at all. What O’Donnell ignores is that his disclosure was so lacking in required information that Smith could not do a complete PFS. That" }, { "docid": "18168178", "title": "", "text": "loan, and certainly by the time Toye had dispersed the loan proceeds (remember, Toye wanted O’Donnell’s PFS before making the loan). And yet O’Donnell never even tried to check his agent’s work at any point, bolstering the judge’s finding that he had “willfully turned a blind eye,” “not caring” what the PFS said — though he clearly cared a lot about getting his hands on Toye’s money, which he “happily” took after “set[ting]” the false PFS “in motion.” Searching for a way out, O’Donnell complains that there is zero evidence of his giving Smith carte blanche, which, he argues, undercuts the intent-to-deceive findings. Hardly. A factfinder could infer— as this one apparently did — that O’Donnell’s directing Smith to do the paperwork and then not ever asking to see it shows a carte-blanche attitude. O’Donnell also grumbles that he gave Smith accurate information, which, he maintains, cripples the intent-to-deceive findings. Not at all. What O’Donnell ignores is that his disclosure was so lacking in required information that Smith could not do a complete PFS. That is the rub. And a factfinder could infer — like this one basically did— that someone with O’Donnell’s résumé should have known that and did know that. The bottom line here is this: Given these particular circumstances, and knowing how famously deferential clear-error review is, see, e.g., Goguen, 691 F.3d at 69, especially when it comes to intent findings, see, e.g., Palmacci, 121 F.3d at 785, we simply are in no position to upset the bankruptcy judge’s intent conclusion. See FDIC v. Reisman (In re Reisman), 149 B.R. 31, 38 (Bankr.S.D.N.Y.1993) (rejecting a debtor’s ostrich tactics, the court found an intent to deceive where the debt- or knew that the bank required a PFS as a condition of a loan and that his accountant had submitted the PFS to the bank, and yet “did not review [the PFS] or inquire as to [its] accuracy”); see also Citizens Bank of Washington Cnty. v. Wright (In re Wright), 299 B.R. 648, 660-61 (Bankr. M.D.Ga.2003) (finding a “claim of ignorance” concerning the falsity of financial papers “unpersuasive because," }, { "docid": "18168171", "title": "", "text": "wrong — it must prompt “a strong, unyielding belief, based on the whole of the record,” that the judge made a mistake. Islamic Inv. Co. of the Gulf (Bah.) Ltd. v. Harper (In re Grand Jury Investigation), 545 F.3d 21, 24 (1st Cir.2008); accord Goguen, 691 F.3d at 69. The case for deferring to the bankruptcy judge’s factfinding is “particularly strong” when intent is at issue — since an intent finding depends heavily on the debtor’s credibility, and the bankruptcy judge is uniquely qualified to make that call. See, e.g., Palmacci v. Umpierrez, 121 F.3d 781, 785 (1st Cir.1997). And finally, because a principal goal of the Bankruptcy Code is to provide deserving debtors with a fresh start, we read exceptions to dischargeability narrowly. See, e.g., Goguen, 691 F.3d at 68. Consequently, a person in Toye’s position must show that his claim fits snugly within an exception contained in the Code. See, e.g., id. Now on to the issues in play. Issues Presented As framed by the parties, the case turns entirely on the final element of section 523(a)(2)(B): whether O’Donnell “caused [the “writing,” i.e., the PFS] to be made or published with intent to deceive.” See § 523(a)(2)(B)(iv). The gist of O’Donnell’s argument is straightforward enough: Despite what the bankruptcy judge thought, one cannot conclude that O’Donnell “caused” the PFS — which he neither reviewed nor signed — “to be made or published,” because Smith was functioning as Toye’s agent. And with this PFS the work of a runaway Smith, one also cannot conclude that O’Donnell intended to deceive Toye with a shady PFS. Toye disagrees, naturally. And we do too. Analysis Take the agency issue. To give his claim about Smith’s being Toye’s agent an aura of plausibility, O’Donnell plays up how Smith and Toye had known each other for years and how Smith had made Toye money three or four times by helping him lend others money before this deal went south. But the problem for O’Donnell is that other evidence cuts against him. Recall how Smith had helped O’Donnell and Ferrante on some deals right before" }, { "docid": "11077843", "title": "", "text": "induce the creditor to rely upon the false promise; with the result that (iv) the creditor relied upon the false promise, and (v) justifiably so, so that (vi) damage resulted. See McCrory v. Spigel (In re Spigel), 260 F.3d 27, 32 (1st Cir.2001); Palmacci v. Umpierrez, 121 F.3d 781, 786 (1st Cir.1997). The burden of proving the elements underlying each of these six steps by a preponderance of the evidence rests with the party seeking nondischargeability. See McCrory, 260 F.3d at 32. A creditor arguing for an exception to nondischarge-ability must prove all six elements; if her proof falls short on any element, her quest for nondischargeability fails. See id. Here, the bankruptcy court went no further than the first two elements. It found that the attorney had not proven by preponderant evidence that the promise to pay was either knowingly false when made or intended to deceive. See deBenedictis, 2013 WL 1342479, at *8. The court premised this determination squarely on the burden of proof: it painstakingly reviewed the record and concluded that the weight of the evidence was “split about even.” Id. Given this fully supportable assessment, we can find no fault with the court’s determination that the attorney failed to carry her burden of proof. When the weight of the evidence is in equipoise, a party cannot plausibly be said to have carried the devoir of persuasion. See Toye v. O’Donnell (In re O’Donnell), 728 F.3d 41, 45 (1st Cir.2013). Second: The attorney labors to cast the relevant events in a light more flattering to her theory of the case. Stripped of rhetorical flourishes, this amounts to an invitation for us to reweigh the evidence and balance the decisional scales differently. We decline this invitation. At this stage of bankruptcy litigation, the task of an appellate court is not to find the facts anew but, rather, to assay the bankruptcy court’s factfinding for clear error. See Boroff v. Tully (In re Tully), 818 F.2d 106, 109 (1st Cir.1987). While the evidence as a whole is capable of supporting the inference of knowing falsity drawn by the attorney," }, { "docid": "18168167", "title": "", "text": "in that amount (at 13.50% interest) from the LLC secured by a mortgage on some property and by O’Donnell’s and Ferrante’s personal guaranties. Unfortunately, the LLC did not pay the loan as required. And Toye ended up turning to O’Donnell, who, also unfortunately, defaulted on his personal-guaranty obligations. A Wave of Litigation Unwilling to take this lying down, Toye sued O’Donnell in state court on the personal guaranty. O’Donnell (supposedly) first saw the false PFS here, in state court. Eventually that court granted Toye summary judgment and entered a $417,974 judgment against O’Donnell. Later, O’Donnell sought bankruptcy protection under Chapter 7 of the Bankruptcy Code. Toye responded by initiating this adversary proceeding in the bankruptcy court, alleging most relevantly here that O’Donnell’s debt to him was nondischargeable per section 523(a)(2)(B). Under this provision (the reader will recall), if a statement about a debtor’s “financial condition” is in a “writing” that is “materially false” and is “reasonably relied” on by the creditor, and if the debtor “caused [that statement] to be made or published with intent to deceive,” then the debt cannot be discharged. Of course, Toye had to prove nondisehargeability by a preponderance of the evidence. See, e.g., Sharfarz v. Goguen (In re Goguen), 691 F.3d 62, 68 (1st Cir.2012). Highlighting only what is needed to understand the issues before us, we note that the parties basically stipulated to everything pretrial except whether O’Donnell had “caused [the PFS] to be made or published with intent to deceive.” At trial, Toye, Smith, and O’Donnell took the stand. And after hearing their testimony and examining the exhibits, the bankruptcy judge refused to discharge O’Donnell’s debt to Toye. The judge began his reasoning this way: Contrary to O’Donnell’s contention, Smith had acted as his — not Toye’s — agent for this transaction. O’Donnell needed a $350,000 loan, and Smith said he could make it happen. “O’Donnell said to Smith, go ahead and give [Toye] what he needs” to make the loan, the judge wrote, so Smith prepared the PFS “on the authority and at the instruction of’ O’Donnell, “and no one else.” In" }, { "docid": "18168179", "title": "", "text": "is the rub. And a factfinder could infer — like this one basically did— that someone with O’Donnell’s résumé should have known that and did know that. The bottom line here is this: Given these particular circumstances, and knowing how famously deferential clear-error review is, see, e.g., Goguen, 691 F.3d at 69, especially when it comes to intent findings, see, e.g., Palmacci, 121 F.3d at 785, we simply are in no position to upset the bankruptcy judge’s intent conclusion. See FDIC v. Reisman (In re Reisman), 149 B.R. 31, 38 (Bankr.S.D.N.Y.1993) (rejecting a debtor’s ostrich tactics, the court found an intent to deceive where the debt- or knew that the bank required a PFS as a condition of a loan and that his accountant had submitted the PFS to the bank, and yet “did not review [the PFS] or inquire as to [its] accuracy”); see also Citizens Bank of Washington Cnty. v. Wright (In re Wright), 299 B.R. 648, 660-61 (Bankr. M.D.Ga.2003) (finding a “claim of ignorance” concerning the falsity of financial papers “unpersuasive because, if true, it was by [d]ebtor’s own design” and so constituted recklessness on the debtor’s part); First Commercial Bank v. Robinson (In re Robinson), 192 B.R. 569, 578 (N.D.Ala. 1996) (similar). And that is that. Summing Up We see no clear error in the bankruptcy judge’s conclusion that Toye had satisfied his burden of proving that O’Donnell’s debt is not dischargeable under section 523(a)(2)(B). Consequently, we uphold the judge’s decision and the BAP’s affirmance of that decision. Affirmed, with Toye awarded his costs on appeal. . The facts recounted are either undisputed or based on the bankruptcy judge’s not-clearly-erroneous findings. The parties spar over the effect of certain documents marked for identification at trial but not introduced, though they agree that the bankruptcy judge did not rely on them. We do not rely on them either. But O’Donnell did testify — without objection — from his personal knowledge about the documents, and under these circumstances, that testimony is fair game for us to consider. See United States v. Rodríguez-Durán, 507 F.3d 749, 774-75 (1st Cir.2007)" }, { "docid": "18168168", "title": "", "text": "to deceive,” then the debt cannot be discharged. Of course, Toye had to prove nondisehargeability by a preponderance of the evidence. See, e.g., Sharfarz v. Goguen (In re Goguen), 691 F.3d 62, 68 (1st Cir.2012). Highlighting only what is needed to understand the issues before us, we note that the parties basically stipulated to everything pretrial except whether O’Donnell had “caused [the PFS] to be made or published with intent to deceive.” At trial, Toye, Smith, and O’Donnell took the stand. And after hearing their testimony and examining the exhibits, the bankruptcy judge refused to discharge O’Donnell’s debt to Toye. The judge began his reasoning this way: Contrary to O’Donnell’s contention, Smith had acted as his — not Toye’s — agent for this transaction. O’Donnell needed a $350,000 loan, and Smith said he could make it happen. “O’Donnell said to Smith, go ahead and give [Toye] what he needs” to make the loan, the judge wrote, so Smith prepared the PFS “on the authority and at the instruction of’ O’Donnell, “and no one else.” In other words, O’Donnell (to quote the judge again) “set” the wheels “in motion” for Smith to prepare and send the PFS to Toye. True, O’Donnell did not “review and sign” the PFS, the judge added. But, the judge ruled, nondischargeability under section 523(a)(2)(B) lies “whether the debtor intentionally did exactly what was done” or whether he was “recklessly]” indifferent to “the propositions asserted in the [PFS].” And here, according to the judge, the evidence showed that O’Donnell “willfully turned a blind eye” to what the PFS said. And, the judge concluded, O’Donnell did “not car[e]” what the PFS said, only that it said whatever Toye needed to hear to make the loan. An unhappy O’Donnell appealed. But the BAP affirmed the judgment, ruling (pertinently for our situation) that the evidence amply demonstrated that Smith was O’Donnell’s agent and that by having his agent prepare and send the PFS O’Donnell had (in the lingo of section 523(a)(2)(B)) “caused [the PFS] to be made or published....” Turning to the question of intent, the BAP said that a" }, { "docid": "18168176", "title": "", "text": "holds that recklessness can suffice to prove the intent element under section 523(a)(2)(A) — -section 523(a)(2)(B)’s statutory sidekick, see Field v. Mans, 516 U.S. 59, 66, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995)— which (at the risk of oversimplification) makes nondischargeable any debt for money obtained by fraud, “other than a statement respecting the debtor’s ... financial condition.” Palmacci, 121 F.3d at 785-86, 788-89 (quoting § 523(a)(2)(A)). And today we join our sibling circuits and hold that recklessness can suffice under section 523(a)(2)(B) too. Anyway, recklessness is where O’Donnell gets tripped up. We explain. Because it would be a rare debtor who would concede that “deception was his purpose,” courts can take account of the totality of the circumstances, including (as we just said) a debtor’s recklessness. Cohn, 54 F.3d at 1118-19; see also 4 Collier on Bankruptcy, supra, ¶ 523.08[2] [e] [ii]. And that review reveals plenty of evidence from which a factfinder could infer recklessness on O’Donnell’s part. Once again, O’Donnell is no babe in the woods when it comes to real-estate financing. Far from it. He knew that Toye wanted a personal guaranty. And because a guaranty is only worth something if the lender knows the borrower’s financial status, he knew (and this is easily inferable) that Toye would want a comprehensive PFS providing the truth, the whole truth, and nothing but the truth — otherwise, why ask for one? “[G]o ahead and give [Toye] what he needs,” were O’Donnell’s marching orders to Smith, the judge found, which suggests that O’Donnell took a hands-off approach to the PFS (just like he had before). True, he did give Smith some financial items. But, as his lawyer candidly conceded at oral argument, O’Donnell did not give Smith enough data to produce a complete PFS, which meant (and this is easily inferable too) that Smith had to come up with the missing information. Also, a trier could draw a strong inference — as this one did — that O’Donnell knew that Toye had gotten the PFS. O’Donnell knew this (at least inferentially) probably by the time Toye had approved the" }, { "docid": "18168181", "title": "", "text": "(concluding that a witness's testimony touching on the content of a document marked as an exhibit but not admitted into evidence sufficed to support the lower court’s decision). . For those curious about the fate of O’Donnell’s cohort, we see that the same bankruptcy judge had (in an earlier proceeding) also declared Ferrante's debt to Toye nondischargeable under section 523(a)(2)(B). There is nothing indicating that Ferrante appealed that ruling. . Relying on Kaspar v. Bellco First Fed. Credit Union (In re Kaspar), 125 F.3d 1358 (10th Cir.1997), among other sources, O’Donnell floats the suggestion that the PFS is not a ''writing” under section 523(a)(2)(B). See 125 F.3d at 1359 (holding that \"a computer generated statement of financial condition given in an application for credit neither seen nor signed by the debtor” is not \" ‘a writing’ within the meaning of § 523(a)(2)(B)”); see also Collier on Bankruptcy ¶ 523.08[2][a] (Alan N. Resnick & Henry J. Sommer eds., 16th ed.2013) (discussing \"[e]lement [n]o. 1 under [s]ection 523(a)(2)(B)” — \"[sjtatement in [wjriting” — and noting that \"the statement, to be ‘in writing,’ must have been either written by the debtor, signed by the debtor, or written by someone else but adopted and used by the debtor”). But he stipulated below that the dispute pivots \"on the fourth prong of [s]ection 523(a)(2)(B)” — i.e., the made-or-published-with-intent-to-deceive prong — so his Kas-par-b&sed argument is off the table. See, e.g., Rodriguez v. Señor Frog’s de la Isla, Inc., 642 F.3d 28, 34-35 (1st Cir.2011) (discussing a stipulation’s effect on litigation). . That is six circuits, for those keeping count." }, { "docid": "18168170", "title": "", "text": "debtor’s reckless indifference to the accuracy of the submitted PFS satisfies the intent-to-deceive element of section 523(a)(2)(B). And, the BAP stressed, the evidence of O’Donnell’s turning a blind eye here proved his intent to deceive. Which brings us to today, with a still unhappy O’Donnell asking us to undo this result. Our Take on the Case Background Legal Principles Before we go any further, a few reminders are in order. We are the second set of reviewers here — the BAP was the first, obviously. But we give the BAP’s decision no special deference. See, e.g., Goguen, 691 F.3d at 68. Rather, we focus on the bankruptcy judge’s ruling, giving clear-error review to fact-findings and fresh review to legal conclusions. Id. Of course, if there are a couple of plausible ways to view the evidence, the judge’s preference for one over the other cannot be clear error. See, e.g., Berliner v. Pappalardo (In re Sullivan), 674 F.3d 65, 70 (1st Cir.2012). And to find clear error, a finding must hit us as more than probably wrong — it must prompt “a strong, unyielding belief, based on the whole of the record,” that the judge made a mistake. Islamic Inv. Co. of the Gulf (Bah.) Ltd. v. Harper (In re Grand Jury Investigation), 545 F.3d 21, 24 (1st Cir.2008); accord Goguen, 691 F.3d at 69. The case for deferring to the bankruptcy judge’s factfinding is “particularly strong” when intent is at issue — since an intent finding depends heavily on the debtor’s credibility, and the bankruptcy judge is uniquely qualified to make that call. See, e.g., Palmacci v. Umpierrez, 121 F.3d 781, 785 (1st Cir.1997). And finally, because a principal goal of the Bankruptcy Code is to provide deserving debtors with a fresh start, we read exceptions to dischargeability narrowly. See, e.g., Goguen, 691 F.3d at 68. Consequently, a person in Toye’s position must show that his claim fits snugly within an exception contained in the Code. See, e.g., id. Now on to the issues in play. Issues Presented As framed by the parties, the case turns entirely on the final" }, { "docid": "18168165", "title": "", "text": "lender in the second deal got O’Donnell’s PFS is unclear on this record. Now we come to the transaction that sparked this litigation. Hard on the heels of these two earlier deals, O’Donnell and Ferrante, through an LLC called Alder Street Properties, LLC, agreed to buy some more property from another party. As part of this transaction, they had to come up with a $350,000 down payment at closing. Once again, they recruited Smith to help secure the financing. And Smith asked Thomas Toye to loan the O’Donnell/Ferrante LLC the money. A high-flyer in the local-business community who had known Smith for years (Smith had hooked him up three or four times with similar loan deals before), Toye said yes, but he wanted (among other things) O’Donnell’s and Ferrante’s personal guaranties for the loan’s repayment. No problem, O’Donnell and Ferrante essentially said. So Smith set about preparing PFSs for both. O’Donnell collected documents showing what stocks he owned and how much money he had in the bank and gave them to Smith. No one disputes the accuracy of this financial information. Smith also managed to get other relevant data from other documents (credit reports, mortgage statements, tax-assessment records, etc.) he already had on file or had dug up through public-record searches he had conducted for this deal. He cannot definitively say how he got some of the documents, however. Nor can he say for sure whether he sent O’Donnell a copy of the PFS, whether he reviewed every aspect of the PFS with him, or whether he saw him sign the PFS. But he does remember emailing a signed copy of O’Donnell’s PFS, along with Ferrante’s, to Toye. For his part, O’Donnell insists that he never reviewed the PFS, that the signature on the PFS is not his, and that he never authorized anyone to send the PFS to Toye. What everyone now agrees on, however, is that O’Donnell’s PFS was “materially false,” containing serious misrepresentations and omissions regarding his income and assets. Wowed by O’Donnell’s (supposed) net worth, Toye lent the O’Donnell/Ferrante LLC the $350,000, receiving a promissory note" }, { "docid": "18168180", "title": "", "text": "if true, it was by [d]ebtor’s own design” and so constituted recklessness on the debtor’s part); First Commercial Bank v. Robinson (In re Robinson), 192 B.R. 569, 578 (N.D.Ala. 1996) (similar). And that is that. Summing Up We see no clear error in the bankruptcy judge’s conclusion that Toye had satisfied his burden of proving that O’Donnell’s debt is not dischargeable under section 523(a)(2)(B). Consequently, we uphold the judge’s decision and the BAP’s affirmance of that decision. Affirmed, with Toye awarded his costs on appeal. . The facts recounted are either undisputed or based on the bankruptcy judge’s not-clearly-erroneous findings. The parties spar over the effect of certain documents marked for identification at trial but not introduced, though they agree that the bankruptcy judge did not rely on them. We do not rely on them either. But O’Donnell did testify — without objection — from his personal knowledge about the documents, and under these circumstances, that testimony is fair game for us to consider. See United States v. Rodríguez-Durán, 507 F.3d 749, 774-75 (1st Cir.2007) (concluding that a witness's testimony touching on the content of a document marked as an exhibit but not admitted into evidence sufficed to support the lower court’s decision). . For those curious about the fate of O’Donnell’s cohort, we see that the same bankruptcy judge had (in an earlier proceeding) also declared Ferrante's debt to Toye nondischargeable under section 523(a)(2)(B). There is nothing indicating that Ferrante appealed that ruling. . Relying on Kaspar v. Bellco First Fed. Credit Union (In re Kaspar), 125 F.3d 1358 (10th Cir.1997), among other sources, O’Donnell floats the suggestion that the PFS is not a ''writing” under section 523(a)(2)(B). See 125 F.3d at 1359 (holding that \"a computer generated statement of financial condition given in an application for credit neither seen nor signed by the debtor” is not \" ‘a writing’ within the meaning of § 523(a)(2)(B)”); see also Collier on Bankruptcy ¶ 523.08[2][a] (Alan N. Resnick & Henry J. Sommer eds., 16th ed.2013) (discussing \"[e]lement [n]o. 1 under [s]ection 523(a)(2)(B)” — \"[sjtatement in [wjriting” — and noting that \"the" }, { "docid": "18168169", "title": "", "text": "other words, O’Donnell (to quote the judge again) “set” the wheels “in motion” for Smith to prepare and send the PFS to Toye. True, O’Donnell did not “review and sign” the PFS, the judge added. But, the judge ruled, nondischargeability under section 523(a)(2)(B) lies “whether the debtor intentionally did exactly what was done” or whether he was “recklessly]” indifferent to “the propositions asserted in the [PFS].” And here, according to the judge, the evidence showed that O’Donnell “willfully turned a blind eye” to what the PFS said. And, the judge concluded, O’Donnell did “not car[e]” what the PFS said, only that it said whatever Toye needed to hear to make the loan. An unhappy O’Donnell appealed. But the BAP affirmed the judgment, ruling (pertinently for our situation) that the evidence amply demonstrated that Smith was O’Donnell’s agent and that by having his agent prepare and send the PFS O’Donnell had (in the lingo of section 523(a)(2)(B)) “caused [the PFS] to be made or published....” Turning to the question of intent, the BAP said that a debtor’s reckless indifference to the accuracy of the submitted PFS satisfies the intent-to-deceive element of section 523(a)(2)(B). And, the BAP stressed, the evidence of O’Donnell’s turning a blind eye here proved his intent to deceive. Which brings us to today, with a still unhappy O’Donnell asking us to undo this result. Our Take on the Case Background Legal Principles Before we go any further, a few reminders are in order. We are the second set of reviewers here — the BAP was the first, obviously. But we give the BAP’s decision no special deference. See, e.g., Goguen, 691 F.3d at 68. Rather, we focus on the bankruptcy judge’s ruling, giving clear-error review to fact-findings and fresh review to legal conclusions. Id. Of course, if there are a couple of plausible ways to view the evidence, the judge’s preference for one over the other cannot be clear error. See, e.g., Berliner v. Pappalardo (In re Sullivan), 674 F.3d 65, 70 (1st Cir.2012). And to find clear error, a finding must hit us as more than probably" }, { "docid": "18168164", "title": "", "text": "acquire more commercial property. For the first transaction, O’Donnell and Ferrante asked Smith to prepare the financial paperwork. For the second, O’Donnell asked Smith to help arrange the financing. “I didn’t ask him to help do the paperwork,” O’Donnell added, that just came “with the job.” Smith said yes both times. And, among other things, he ended up preparing various financial documents, including O’Donnell’s personal financial statements (“PFSs,” from here on out). O’Donnell was no stranger to PFSs. He knew from past deals that lenders wanted them, usually along with personal guaranties. And he gave Smith some pertinent financial information to prepare PFSs for both undertakings. Smith got other important data from documents he had gathered. O’Donnell had what seemed to be a hands-off attitude when it came to putting financials together, “delegating” the bulk of the paperwork to Smith and relying on him “to know what to do and how to do it” — an arrangement O’Donnell was “very comfortable with.” Smith sent O’Donnell’s PFS to the lender in the first deal. How the lender in the second deal got O’Donnell’s PFS is unclear on this record. Now we come to the transaction that sparked this litigation. Hard on the heels of these two earlier deals, O’Donnell and Ferrante, through an LLC called Alder Street Properties, LLC, agreed to buy some more property from another party. As part of this transaction, they had to come up with a $350,000 down payment at closing. Once again, they recruited Smith to help secure the financing. And Smith asked Thomas Toye to loan the O’Donnell/Ferrante LLC the money. A high-flyer in the local-business community who had known Smith for years (Smith had hooked him up three or four times with similar loan deals before), Toye said yes, but he wanted (among other things) O’Donnell’s and Ferrante’s personal guaranties for the loan’s repayment. No problem, O’Donnell and Ferrante essentially said. So Smith set about preparing PFSs for both. O’Donnell collected documents showing what stocks he owned and how much money he had in the bank and gave them to Smith. No one disputes" }, { "docid": "18168175", "title": "", "text": "(1985) (holding that if, on whole-record review, the lower court’s “account of the evidence is plausible,” then we “may not reverse it even though convinced that had [we] been sitting as the trier of fact, [we] would have weighed the evidence differently”). That leaves the “intent to deceive” issue, with O’Donnell protesting that the bankruptcy judge rested the intent-to-deceive findings on air, basically. He reminds us, for starters, that he had neither reviewed nor signed the false PFS before Smith emailed it to Toye. Yes, but intent to deceive under section 523(a)(2)(B) may be demonstrated by the debtor’s knowledge of, reckless indifference to, or reckless disregard for the written statement’s falsity. See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh v. Bonnanzio (In re Bonnanzio), 91 F.3d 296, 301 (2d Cir.1996); Ins. Co. of N. Am. v. Cohn (In re Cohn), 54 F.3d 1108, 1118-19 (3d Cir.1995) (citing additional cases from the 6th, 10th, and 11th Circuits); Morrison v. W. Builders of Amarillo, Inc. (In re Morrison), 555 F.3d 473, 482 (5th Cir.2009). Our caselaw holds that recklessness can suffice to prove the intent element under section 523(a)(2)(A) — -section 523(a)(2)(B)’s statutory sidekick, see Field v. Mans, 516 U.S. 59, 66, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995)— which (at the risk of oversimplification) makes nondischargeable any debt for money obtained by fraud, “other than a statement respecting the debtor’s ... financial condition.” Palmacci, 121 F.3d at 785-86, 788-89 (quoting § 523(a)(2)(A)). And today we join our sibling circuits and hold that recklessness can suffice under section 523(a)(2)(B) too. Anyway, recklessness is where O’Donnell gets tripped up. We explain. Because it would be a rare debtor who would concede that “deception was his purpose,” courts can take account of the totality of the circumstances, including (as we just said) a debtor’s recklessness. Cohn, 54 F.3d at 1118-19; see also 4 Collier on Bankruptcy, supra, ¶ 523.08[2] [e] [ii]. And that review reveals plenty of evidence from which a factfinder could infer recklessness on O’Donnell’s part. Once again, O’Donnell is no babe in the woods when it comes to real-estate financing." } ]

[ { "docid": "13456547", "title": "", "text": "cannot assess the merits of the President’s decision to launch an attack on a foreign target.” Id. Here, plaintiff asks this Court to do exactly what the D.C. Circuit forbid in El-Shifa — assess the merits of the President’s (alleged) decision to launch an attack on a foreign target. Although the “foreign target” happens to be a U.S. citizen, the same reasons that counseled against judicial resolution of the plaintiffs’ claims in Eh-Shifa apply with equal force here. Just as in El-Shifa, any judicial determination as to the propriety of a military attack on An-war Al-Aulaqi would “ ‘require this court to elucidate the ... standards that are to guide a President when he evaluates the veracity of military intelligence.’” Id. at 846 (quoting El-Shifa Pharm. Indus. Co. v. United States, 378 F.3d 1346, 1365 (Fed.Cir.2004)). Indeed, that is just what plaintiff has asked this Court to do. See Compl., Prayer for Relief (d) (requesting that the Court order the defendants to “disclose the criteria used in determining whether the government will carry out the targeted killing of a U.S. citizen”). But there are no judicially manageable standards by which courts can endeavor to assess the President’s interpretation of military intelligence and his resulting decision — based on that intelligence — whether to use military force against a terrorist target overseas. See El-Shifa, 378 F.3d at 1367 n. 6 (expressing the view that “it would be difficult, if not extraordinary, for the federal courts to discover and announce the threshold standard by which the United States government evaluates intelligence in making a decision to commit military force in an effort to thwart an imminent terrorist attack on Americans”). Nor are there judicially manageable standards by which courts may determine the nature and magnitude of the national security threat posed by a particular individual. In fact, the D.C. Circuit has expressly held that the question whether an organization’s alleged “terrorist activity” threatens “the national security of the United States” is “nonjusticiable.” People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 23 (D.C.Cir.1999). Given that courts may not" } ]

[ { "docid": "13456548", "title": "", "text": "targeted killing of a U.S. citizen”). But there are no judicially manageable standards by which courts can endeavor to assess the President’s interpretation of military intelligence and his resulting decision — based on that intelligence — whether to use military force against a terrorist target overseas. See El-Shifa, 378 F.3d at 1367 n. 6 (expressing the view that “it would be difficult, if not extraordinary, for the federal courts to discover and announce the threshold standard by which the United States government evaluates intelligence in making a decision to commit military force in an effort to thwart an imminent terrorist attack on Americans”). Nor are there judicially manageable standards by which courts may determine the nature and magnitude of the national security threat posed by a particular individual. In fact, the D.C. Circuit has expressly held that the question whether an organization’s alleged “terrorist activity” threatens “the national security of the United States” is “nonjusticiable.” People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 23 (D.C.Cir.1999). Given that courts may not undertake to assess whether a particular organization’s alleged terrorist activities threaten national security, it would seem axiomatic that courts must also decline to assess whether a particular individual’s alleged terrorist activities threaten national security. But absent such a judicial determination as to the nature and extent of the alleged national security threat that Anwar Al-Aulaqi poses to the United States, this Court cannot possibly determine whether the government’s alleged use of lethal force against Anwar Al-Aulaqi would be “justified or well-founded.” See El-Shifa, 607 F.3d at 844. Thus, the second Baker factor — a “lack of judicially discoverable and manageable standards” for resolving the dispute — strongly counsels against judicial review of plaintiffs claims. The type of relief that plaintiff seeks only underscores the impropriety of judicial review here. Plaintiff requests both a declaration setting forth the standard under which the United States can select individuals for targeted killing as well as an injunction prohibiting defendants from intentionally killing Anwar Al-Aulaqi unless he meets that standard — i.e., unless he “presents a concrete, specific, and" }, { "docid": "13456560", "title": "", "text": "“plays an operational role in AQAP planning terrorist attacks against the United States.” Defs.’ Mem. at 36; see also Clapper Decl. ¶¶ 13-17. The injunctive and declaratory relief sought by plaintiff would thus be vastly more intrusive upon the powers of the Executive than the relief sought in Ramirez, where the court was only called upon to adjudicate “the defendants’ constitutional authority to occupy and use the plaintiffs’ property.” Ramirez, 745 F.2d at 1513. Moreover, although resolution of the plaintiffs’ claims in Ramirez only required “interpretations of the Constitution and of federal statutes,” which are “quintessential tasks of the federal Judiciary,” see id., resolution of the claims in this case would require assessment of “strategic choices directing the nation’s foreign affairs [that] are constitutionally committed to the political branches,” El-Shifa, 607 F.3d at 843. To be sure, this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211, 82 S.Ct. 691), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F.Supp.2d at 64, it does not become inapposite. Indeed, in one of the only two cases since Baker v. Carr in which the Supreme Court has dismissed a case on political question grounds, the plaintiffs were U.S. citizens alleging violations of their constitutional rights. See Gilligan v. Morgan, 413 U.S. 1, 3, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). In Gilligan, students at Kent State University brought suit in the wake of the “Kent State massacre,” seeking declaratory and injunctive relief that would prohibit the Ohio Governor from “prematurely ordering National" }, { "docid": "13456559", "title": "", "text": "plaintiffs’ property” did not require “expertise beyond the capacity of the Judiciary” or “unquestioning adherence to a political decision by the Executive.” See id. at 1513, 1514; see also Comm. of U.S. Citizens Living in Nicaragua, 859 F.2d at 934-35 (finding justiciable the Fifth Amendment claims raised by U.S. citizens living in Nicaragua, who alleged that the United States’s funding of the Contras in Nicaragua deprived them of their liberty and property without due process by making them “targets of the Contra ‘resistance,’ ” but ultimately declining to hear the plaintiffs’ claims since there was “no allegation that the United States itself has participated in or in any way sought to encourage injuries to Americans in Nicaragua”). Unlike Ramirez, the questions posed in this case do require both “expertise beyond the capacity of the Judiciary” and the need for “unquestioning adherence to a political decision by the Executive.” Here, plaintiff asks the Judiciary to limit the circumstances under which the United States may employ lethal force against an individual abroad whom the Executive has determined “plays an operational role in AQAP planning terrorist attacks against the United States.” Defs.’ Mem. at 36; see also Clapper Decl. ¶¶ 13-17. The injunctive and declaratory relief sought by plaintiff would thus be vastly more intrusive upon the powers of the Executive than the relief sought in Ramirez, where the court was only called upon to adjudicate “the defendants’ constitutional authority to occupy and use the plaintiffs’ property.” Ramirez, 745 F.2d at 1513. Moreover, although resolution of the plaintiffs’ claims in Ramirez only required “interpretations of the Constitution and of federal statutes,” which are “quintessential tasks of the federal Judiciary,” see id., resolution of the claims in this case would require assessment of “strategic choices directing the nation’s foreign affairs [that] are constitutionally committed to the political branches,” El-Shifa, 607 F.3d at 843. To be sure, this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But" }, { "docid": "13456549", "title": "", "text": "undertake to assess whether a particular organization’s alleged terrorist activities threaten national security, it would seem axiomatic that courts must also decline to assess whether a particular individual’s alleged terrorist activities threaten national security. But absent such a judicial determination as to the nature and extent of the alleged national security threat that Anwar Al-Aulaqi poses to the United States, this Court cannot possibly determine whether the government’s alleged use of lethal force against Anwar Al-Aulaqi would be “justified or well-founded.” See El-Shifa, 607 F.3d at 844. Thus, the second Baker factor — a “lack of judicially discoverable and manageable standards” for resolving the dispute — strongly counsels against judicial review of plaintiffs claims. The type of relief that plaintiff seeks only underscores the impropriety of judicial review here. Plaintiff requests both a declaration setting forth the standard under which the United States can select individuals for targeted killing as well as an injunction prohibiting defendants from intentionally killing Anwar Al-Aulaqi unless he meets that standard — i.e., unless he “presents a concrete, specific, and imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat.” Compl., Prayer for Relief (a), (c). Yet plaintiff concedes that the “ ‘imminence’ requirement” of his proffered legal standard would render any “real-time judicial review” of targeting decisions “infeasible,” PL’s Opp. at 17, 30, and he therefore urges this Court to issue his requested preliminary injunction and then enforce the injunction “through an after-the-fact contempt motion or an after-the-fact damages action.” Id. at 17-18. But as the D.C. Circuit has explained, “[i]t is not the role of judges to second-guess, with the benefit of hindsight, another branch’s determination that the interests of the United States call for military action.” El-Shifa, 607 F.3d at 844. Such military determinations are textually committed to the political branches. See Schneider, 412 F.3d at 194-95 (explaining that “Article I, Section 8 of the Constitution ... is richly laden with the delegation of foreign policy and national security powers to Congress,” while “Article II likewise provides" }, { "docid": "2212411", "title": "", "text": "and they were intended targets of the Contras. 859 F.2d at 935. The D.C. Circuit determined that these due process claims were “serious allegations and not ones to be dismissed as nonjusticiable” because “[t]he Executive’s power to conduct foreign relations free from the unwarranted supervision of the Judiciary cannot give the Executive carte blanche to trample the most fundamental liberty and property rights of this country’s citizenry.” Id. (quoting Ramirez de Arellano, 745 F.2d at 1515). The same reasoning applies here. The powers granted to the Executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a U.S. citizen of his life •without due process and without any judicial review. See U.S. Citizens v. Reagan, 859 F.2d at 935. The interest in avoiding the erroneous deprivation of one’s life is uniquely compelling. See Ake v. Oklahoma, 470 U.S. 68, 78, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (“The private interest in the accuracy of a criminal proceedings that places an individual’s life or liberty at risk is almost uniquely compelling.”); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (“[T]his qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.”). The Bill of Rights was passed to protect individuals from an overreaching government, and this Court cannot refuse to provide an independent legal analysis. This conclusion is not changed because Defendants argue that El-Shifa Pharmaceutical Industries v. United States makes this case non justiciable. The El-Shifa plaintiffs were owners of a Sudanese pharmaceutical plant who sued the United States for destroying their plant with a missile strike. U.S. officials asserted that the plant was producing chemical weapons for Osama bin Laden. 607 F.3d at 838-39. The plaintiffs sought compensation for the plant’s destruction and the retraction of allegedly defamatory statements. Id. at 839. The Circuit dismissed the case based on the political question doctrine. Id. at 840-44. El-Shifa is distinguishable from this case in key respects — the El-Shifa plaintiffs were not U.S. citizens and there" }, { "docid": "13456543", "title": "", "text": "clear that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Baker, 369 U.S. at 211, 82 S.Ct. 691. Although “ ‘attacks on foreign policymaking are nonjusticiable, claims alleging non-compliance with the law are justiciable, even though the limited review that the court undertakes may have an effect on foreign affairs.’ ” Schneider, 412 F.3d at 198 (quoting DKT Memorial Fund Ltd. v. Agency for Int’l Dev., 810 F.2d 1236, 1238 (D.C.Cir.1987)). The political question doctrine, the Supreme Court has warned, was only designed to cover a “narrow” category of “carefully defined” cases, and should not be employed as “an ad hoc litmus test of [courts’] reactions to the desirability of and need for judicial application of constitutional or statutory standards to a given type of claim.” Davis v. Bandemer, 478 U.S. 109, 126, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986). Hence, in order to decide whether a particular legal challenge constitutes an impermissible “attack on foreign policymaking” or is instead a justiciable claim with a permissible “effect on foreign affairs,” a court “must conduct ‘a discriminating analysis of the particular question posed’ in the ‘specific case.’ ” El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211, 82 S.Ct. 691). Judicial resolution of the “particular questions” posed by plaintiff in this case would require this Court to decide: (1) the precise nature and extent of Anwar Al-Aulaqi’s affiliation with AQAP; (2) whether AQAP and al Qaeda are so closely linked that the defendants’ targeted killing of Anwar Al-Aulaqi in Yemen would come within the United States’s current armed conflict with al Qaeda; (3) whether (assuming plaintiffs proffered legal standard applies) Anwar Al-Aulaqi’s alleged terrorist activity renders him a “concrete, specific, and imminent threat to life or physical safety,” see Compl., Prayer for Relief (c); and (4) whether there are “means short of lethal force” that the United States could “reasonably” employ to address any threat that Anwar Al-Aulaqi poses to U.S. national security interests, see id. Such determinations, in turn, would require this Court, in defendants’ view, to understand" }, { "docid": "8887177", "title": "", "text": "gas.” Id. The day after the strikes, the President sent a letter to Congress in which he stated that the Plant was being used to produce chemical weapons. See Letter to Congressional Leaders Reporting on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers (Aug. 21, 1998). The President stated the United States had acted in self-defense, and that the strikes were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities. These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat.' The targets were selected because they served to facilitate directly the efforts of terrorists specifically identified with attacks on U.S. personnel and facilities and posed a continuing threat to U.S. lives. Id. The President added that he ordered the strikes “pursuant to [his] constitutional authority to conduct U.S. foreign relations and as Commander and Chief Executive.” Id. Although bin Laden and al-Qaeda survived the strikes, the Plant was “substantially, if not completely, destroyed.” El-Shifa, 55 Fed. Cl. at 754. The appellants aver that the Plant was destroyed by cruise missiles launched from American naval vessels operating on the high seas. The appellants filed a complaint in the Court of Federal Claims on July 27, 2000, seeking $50 million in damages as compensation for the destruction of the Plant by the United States. The complaint contained a series of factual allegations denying assertions President Clinton and members of his administration made regarding the Plant’s involvement in the production of chemical weapons as well as links between the appellants and al-Qaeda. The government responded with a motion to dismiss the complaint challenging the appellants’ standing to sue as well as the jurisdiction of the Court of Federal Claims to entertain their takings claim. The government argued first, that the appellants’ complaint should be dismissed because nonresident aliens do not have standing to sue the government for an alleged taking absent a substantial voluntary connection between the United States and the claimants or their property. Second, the government characterized any injury the appellants may" }, { "docid": "13456550", "title": "", "text": "imminent threat to life or physical safety, and there are no means other than lethal force that could reasonably be employed to neutralize the threat.” Compl., Prayer for Relief (a), (c). Yet plaintiff concedes that the “ ‘imminence’ requirement” of his proffered legal standard would render any “real-time judicial review” of targeting decisions “infeasible,” PL’s Opp. at 17, 30, and he therefore urges this Court to issue his requested preliminary injunction and then enforce the injunction “through an after-the-fact contempt motion or an after-the-fact damages action.” Id. at 17-18. But as the D.C. Circuit has explained, “[i]t is not the role of judges to second-guess, with the benefit of hindsight, another branch’s determination that the interests of the United States call for military action.” El-Shifa, 607 F.3d at 844. Such military determinations are textually committed to the political branches. See Schneider, 412 F.3d at 194-95 (explaining that “Article I, Section 8 of the Constitution ... is richly laden with the delegation of foreign policy and national security powers to Congress,” while “Article II likewise provides allocation of foreign relations and national security powers to the President, the unitary chief executive” and Commander in Chief of the Army and Navy). Moreover, any post hoc judicial assessment as to the propriety of the Executive’s decision to employ military force abroad “would be anathema to ... separation of powers” principles. See El-Shifa, 607 F.3d at 845. The first, fourth, and sixth Baker factors thus all militate against judicial review of plaintiffs’ claims, since there is a “textually demonstrable constitutional commitment” of the United States’s decision to employ military force to coordinate political departments (Congress and the Executive), and any after-the-fact judicial review of the Executive’s decision to employ military force abroad would reveal a “lack of respect due coordinate branches of government” and create “the potentiality of embarrassment of multifarious pronouncements by various departments on one question.” Baker, 369 U.S. at 217, 82 S.Ct. 691. The mere fact that the “foreign target” of military action in this case is an individual — rather than alleged enemy property — does not distinguish plaintiffs claims" }, { "docid": "6290976", "title": "", "text": "function of the separation of powers and setting forth six factors for lower courts to consider, the presence of any one of which requires dismissal if the factor is “inextricable from the case at bar.” Id. at 217, 82 S.Ct. 691. According to defendant, two of the Baker factors are especially relevant here: [4] “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”; [and] [6] “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id. It is true that the Supreme Court has singled out the foreign affairs context as one to which the political question doctrine will normally apply: “[n]ot only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government’s views.” Id. at 211, 82 S.Ct. 691. Even so, it remains possible for an action to touch on foreign affairs without necessarily raising a non-justiciable political question. See El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C.Cir.2010) (“[T]he political question doctrine does not bar a claim that the government has violated the Constitution simply because the claim implicates foreign relations.”). Accordingly, courts are directed to undertake “a discriminating analysis of the particular question posed” in view of the unique circumstances of the case to determine whether the political question doctrine prevents a plaintiffs claims from going forward. Baker, 369 U.S. at 211, 82 S.Ct. 691. Here, such analysis weighs against applying the political question doctrine to plaintiffs TVPA claims. First, there is no danger that this Court will express a lack of respect for the Executive Branch by adjudicating plaintiffs claims because foreign affairs, as such, are not directly implicated. See id. In other words, the Court need not reconsider the wisdom of discretionary decisions made by the Executive Branch (or the Legislative Branch, for that matter) regarding our nation’s relationship with the government of' Somalia. Nor would resolution in any way call" }, { "docid": "2212410", "title": "", "text": "2353, 86 L.Ed.2d 255 (1985). “The political question doctrine has occupied a more limited place in the Supreme Court’s jurisprudence than is sometimes assumed. The Court has relied on the doctrine only twice in the last 50 years.” El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 856 (D.C.Cir.2010) (en banc) (Kavanaugh, J., concurring in judgment). “[T]he Supreme Court has repeatedly found that claims based on [due process] rights are justiciable, even if they implicate foreign policy decisions.” Comm, of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 935 (D.C.Cir.1988) (citing Regan v. Wald, 468 U.S. 222, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984); Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981)). In U.S. Citizens v. Reagan, a group of U.S. citizens living in Nicaragua advanced Fifth Amendment claims challenging U.S. support of military actions by the so-called “Contras.” They argued that funding the Contras deprived them of liberty and property without due process of law because they were threatened by the war in Nicaragua and they were intended targets of the Contras. 859 F.2d at 935. The D.C. Circuit determined that these due process claims were “serious allegations and not ones to be dismissed as nonjusticiable” because “[t]he Executive’s power to conduct foreign relations free from the unwarranted supervision of the Judiciary cannot give the Executive carte blanche to trample the most fundamental liberty and property rights of this country’s citizenry.” Id. (quoting Ramirez de Arellano, 745 F.2d at 1515). The same reasoning applies here. The powers granted to the Executive and Congress to wage war and provide for national security does not give them carte blanche to deprive a U.S. citizen of his life •without due process and without any judicial review. See U.S. Citizens v. Reagan, 859 F.2d at 935. The interest in avoiding the erroneous deprivation of one’s life is uniquely compelling. See Ake v. Oklahoma, 470 U.S. 68, 78, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (“The private interest in the accuracy of a criminal proceedings that places an individual’s life or liberty at risk" }, { "docid": "2212412", "title": "", "text": "is almost uniquely compelling.”); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (“[T]his qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed.”). The Bill of Rights was passed to protect individuals from an overreaching government, and this Court cannot refuse to provide an independent legal analysis. This conclusion is not changed because Defendants argue that El-Shifa Pharmaceutical Industries v. United States makes this case non justiciable. The El-Shifa plaintiffs were owners of a Sudanese pharmaceutical plant who sued the United States for destroying their plant with a missile strike. U.S. officials asserted that the plant was producing chemical weapons for Osama bin Laden. 607 F.3d at 838-39. The plaintiffs sought compensation for the plant’s destruction and the retraction of allegedly defamatory statements. Id. at 839. The Circuit dismissed the case based on the political question doctrine. Id. at 840-44. El-Shifa is distinguishable from this case in key respects — the El-Shifa plaintiffs were not U.S. citizens and there was no allegation that they had a substantial connection to the United States that might have given rise to cognizable Fifth Amendment rights. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265-66, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (a non-U.S. resident foreign national is entitled to certain constitutional protections if the foreign national had a “substantial connection” to the United States); 32 Cnty. Sovereignty Comm. v. Dep’t of State, 292 F.3d 797, 799 (D.C.Cir.2002) (foreign plaintiff was not entitled to due process regarding State Department’s designation of it as a foreign terrorist organization because plaintiff did not have a controlling interest in property in the United States and did not show any other substantial connection). Foreign aliens suing for deprivation of a foreign property interest are not comparable to U.S. citizens suing for deprivation of their lives. Because Plaintiffs here pointedly allege that Defendants, U.S. officials, intentionally targeted and killed U.S. citizens abroad without due process, the Court finds that this case is justiciable and that it has subject matter jurisdiction. B. Constitutional Claims" }, { "docid": "13456556", "title": "", "text": "the U.S. military abroad, see, e.g., Ramirez de Arellano, 745 F.2d at 1511-12. But habeas petitions and takings claims are both much more amenable to judicial resolution than the claims raised by plaintiff in this case. Courts have been willing to hear habeas petitions (from both U.S. citizens and aliens) because “the Constitution specifically contemplates a judicial role” for claims by individuals challenging their detention by the Executive. See El-Shifa, 607 F.3d at 848-49; see also Boumediene v. Bush, 553 U.S. 723, 745, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (explaining that the Suspension Clause “protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account”). While the Suspension Clause reflects a “textually demonstrable commitment” of habeas corpus claims to the Judiciary, see Baker, 369 U.S. at 217, 82 S.Ct. 691, there is no “constitutional commitment to the courts for review of a military decision to launch a missile at a foreign target,” El-Shifa, 607 F.3d at 849. Indeed, such military decisions are textually committed not to the Judiciary, but to the political branches. See Schneider, 412 F.3d at 194-96. Moreover, the resolution of habeas petitions does not require expertise beyond the purview of the Judiciary. Although plaintiff is correct to point out that habeas cases involving Guantanamo detainees often involve judicial scrutiny of highly sensitive military and intelligence information, see Mot. Hr’g Tr. 54:7-10, 83:24-84:1, such information is only used to determine whether “the United States has unjustly deprived an American citizen of liberty through acts it has already taken.” Abu Ali v. Ashcroft, 350 F.Supp.2d 28, 65 (D.D.C.2004); see also Defs.’ Mem. at 31. These post hoc determinations are “precisely what courts are accustomed to assessing.” Abu Ali, 350 F.Supp.2d at 65. But courts are certainly not accustomed to assessing claims like those raised by plaintiff here, which seek to prevent future U.S. military action in the name of national security against specifically contemplated targets by the imposition of judicially-prescribed legal standards enforced through “after-the-fact contempt motion[s]” or “after-the-fact damages action[s].” See Pl.’s Opp. at 17-18. Hence, the" }, { "docid": "8887176", "title": "", "text": "in El-Shifa, a corporation organized under the laws of Sudan, for $18 million. At the time, El-Shifa was the sole and exclusive owner of a manufacturing facility located in Khartoum, Sudan (“the Plant”). The appellants allege that El-Shifa was the largest pharmaceutical manufacturing company in Sudan and that it used the Plant to supply drugs sorely needed by the impoverished people living in that country. On August 7, 1998, the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were bombed in nearly simultaneous attacks that were linked to Osama bin Ladin and the terrorist organization al-Qaeda. On August 20, 1998, President William Jefferson Clinton ordered the armed forces of the United States to conduct strikes in Afghanistan and Sudan intended to “disrupt bin Ladin’s terrorist network and destroy elements of its infrastructure” there. President’s Radio Address, 2 Pub. Papers (Aug. 22, 1998). In particular, the stated purpose of the strikes was to “destroy, in Sudan, [a] factory with which bin Ladin’s network is associated, which was producing an ingredient essential for nerve gas.” Id. The day after the strikes, the President sent a letter to Congress in which he stated that the Plant was being used to produce chemical weapons. See Letter to Congressional Leaders Reporting on Military Action Against Terrorist Sites in Afghanistan and Sudan, 2 Pub. Papers (Aug. 21, 1998). The President stated the United States had acted in self-defense, and that the strikes were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities. These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat.' The targets were selected because they served to facilitate directly the efforts of terrorists specifically identified with attacks on U.S. personnel and facilities and posed a continuing threat to U.S. lives. Id. The President added that he ordered the strikes “pursuant to [his] constitutional authority to conduct U.S. foreign relations and as Commander and Chief Executive.” Id. Although bin Laden and al-Qaeda survived the strikes, the Plant was “substantially, if not completely, destroyed.” El-Shifa, 55 Fed." }, { "docid": "13456563", "title": "", "text": "best positioned and most politically accountable for making them.” Hamdi, 542 U.S. at 531, 124 S.Ct. 2633; see also Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918) (explaining that “[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative — ‘the political’ — departments of the government, and the propriety of what may be done in the exercise of this power is not subject to judicial inquiry or decision”). “Judges, deficient in military knowledge ... and sitting thousands of miles away from the field of action, cannot reasonably or appropriately determine” if a specific military operation is necessary or wise. DaCosta, 471 F.2d at 1155. Whether the alleged “terrorist activities” of an individual so threaten the national security of the United States as to warrant that military action be taken against that individual is a “political judgment ] ... [which] belong[s] in the domain of political power not subject to judicial intrusion or inquiry.” El-Shifa, 607 F.3d at 843 (internal quotation marks and citations omitted). Contrary to plaintiffs assertion, in holding that the political question doctrine bars plaintiffs claims, this Court does not hold that the Executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” See Mot. Hr’g Tr. 118:1-2. Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of AQAP, see Clapper Deck ¶ 15, presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a “drastic measure” for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a “terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009,” id. ¶ 13. But as the D.C. Circuit explained" }, { "docid": "13456544", "title": "", "text": "permissible “effect on foreign affairs,” a court “must conduct ‘a discriminating analysis of the particular question posed’ in the ‘specific case.’ ” El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211, 82 S.Ct. 691). Judicial resolution of the “particular questions” posed by plaintiff in this case would require this Court to decide: (1) the precise nature and extent of Anwar Al-Aulaqi’s affiliation with AQAP; (2) whether AQAP and al Qaeda are so closely linked that the defendants’ targeted killing of Anwar Al-Aulaqi in Yemen would come within the United States’s current armed conflict with al Qaeda; (3) whether (assuming plaintiffs proffered legal standard applies) Anwar Al-Aulaqi’s alleged terrorist activity renders him a “concrete, specific, and imminent threat to life or physical safety,” see Compl., Prayer for Relief (c); and (4) whether there are “means short of lethal force” that the United States could “reasonably” employ to address any threat that Anwar Al-Aulaqi poses to U.S. national security interests, see id. Such determinations, in turn, would require this Court, in defendants’ view, to understand and assess “the capabilities of the [alleged] terrorist operative to carry out a threatened attack, what response would be sufficient to address that threat, possible diplomatic considerations that may bear on such responses, the vulnerability of potential targets that the [alleged] terrorist] may strike, the availability of military and nonmilitary options, and the risks to military and nonmilitary personnel in attempting application of non-lethal force.” Defs.’ Mem. at 26; see also Mot. Hr’g Tr. 38:6-14. Viewed through these prisms, it becomes clear that plaintiffs claims pose precisely the types of complex policy questions that the D.C. Circuit has historically held non-justiciable under the political question doctrine. Most recently, in El-Shifa v. United States the D.C. Circuit examined whether the political question doctrine barred judicial resolution of claims by owners of a Sudanese pharmaceutical plant who brought suit seeking to recover damages after their plant was destroyed by an American cruise missile. President Clinton had ordered the missile strike in light of intelligence indicating that the plant was “ ‘associated with the [Osama] bin Ladin network’" }, { "docid": "6290977", "title": "", "text": "necessarily raising a non-justiciable political question. See El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C.Cir.2010) (“[T]he political question doctrine does not bar a claim that the government has violated the Constitution simply because the claim implicates foreign relations.”). Accordingly, courts are directed to undertake “a discriminating analysis of the particular question posed” in view of the unique circumstances of the case to determine whether the political question doctrine prevents a plaintiffs claims from going forward. Baker, 369 U.S. at 211, 82 S.Ct. 691. Here, such analysis weighs against applying the political question doctrine to plaintiffs TVPA claims. First, there is no danger that this Court will express a lack of respect for the Executive Branch by adjudicating plaintiffs claims because foreign affairs, as such, are not directly implicated. See id. In other words, the Court need not reconsider the wisdom of discretionary decisions made by the Executive Branch (or the Legislative Branch, for that matter) regarding our nation’s relationship with the government of' Somalia. Nor would resolution in any way call into question the prudence of the Executive Branch in a matter of foreign affairs constitutionally committed to its discretion. To the contrary, defendant cannot identify a single decision of the Executive Branch that might justify application of the political question doctrine because no such decision has in fact been made, setting this case apart from those cited in defendant’s papers, all of which involved some affirmative policy decision made by a political branch. See, e.g., Corrie v. Caterpillar, Inc., 503 F.3d 974, 982 (9th Cir.2007) (noting that the “decisive factor” favoring application of political question doctrine was that the weapon “sales [at issue] to Israel were paid for by the United States”); Doe v. Exxon Mobil Corp., 393 F.Supp.2d 20, 22 (D.D.C.2005) (holding that “adjudication of this lawsuit at this time would in fact risk a potentially serious adverse impact on significant interests of the United States” after the State Department advised the court that the lawsuit should not proceed). Plaintiffs claims present purely legal issues, and therefore do not implicate any decisions made by" }, { "docid": "8887175", "title": "", "text": "CLEVENGER, Circuit Judge. El-Shifa Pharmaceutical Industries Company (“El-Shifa”) and Salah El Din Ahmed Mohammed Idris (“Idris”) (collectively “appellants”) brought this suit seeking just compensation for the destruction of a manufacturing facility by the armed forces of the United States. The complaint alleges that destruction of the appellants’ facility constituted a taking of private property for public use within the meaning of the Fifth Amendment to the United States Constitution. The Court of Federal Claims concluded that the government’s conduct did not rise to the level of a taking under the Fifth Amendment and dismissed the complaint accordingly. El-Shifa Pharm. Indus. Co. v. United States, 55 Fed. Cl. 751 (2003). For the reasons stated below, we hold that the appellants failed to allege a valid takings claim and therefore affirm the judgment of the Court of Federal Claims. I The complaint states that Idris is a highly successful Saudi banker who was born and raised in . Sudan. The chain of events leading up to the instant lawsuit began in March 1998, when Idris purchased shares in El-Shifa, a corporation organized under the laws of Sudan, for $18 million. At the time, El-Shifa was the sole and exclusive owner of a manufacturing facility located in Khartoum, Sudan (“the Plant”). The appellants allege that El-Shifa was the largest pharmaceutical manufacturing company in Sudan and that it used the Plant to supply drugs sorely needed by the impoverished people living in that country. On August 7, 1998, the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, were bombed in nearly simultaneous attacks that were linked to Osama bin Ladin and the terrorist organization al-Qaeda. On August 20, 1998, President William Jefferson Clinton ordered the armed forces of the United States to conduct strikes in Afghanistan and Sudan intended to “disrupt bin Ladin’s terrorist network and destroy elements of its infrastructure” there. President’s Radio Address, 2 Pub. Papers (Aug. 22, 1998). In particular, the stated purpose of the strikes was to “destroy, in Sudan, [a] factory with which bin Ladin’s network is associated, which was producing an ingredient essential for nerve" }, { "docid": "13456555", "title": "", "text": "Gonzalez-Vera, or the Chagos Archipelago inhabitants in Bancoult — is a U.S. citizen. The significance of Anwar A-Aulaqi’s U.S. citizenship is not lost on this Court. Indeed, it does not appear that any court has ever— on political question doctrine grounds— refused to hear a U.S. citizen’s claim that his personal constitutional rights have been violated as a result of U.S. government action taken abroad. Nevertheless, there is inadequate reason to conclude that Anwar A-Aulaqi’s U.S. citizenship — standing alone- — renders the political question doctrine inapplicable to plaintiffs claims. Plaintiff cites two contexts in which courts have found claims asserting violations of U.S. citizens’ constitutional rights to be justiciable despite the fact that those claims implicate grave national security and foreign policy concerns. See Pl.’s Opp. at 22-23, 25-27. Courts have been willing to entertain habeas petitions from U.S. citizens detained by the United States as enemy combatants, see, e.g., Hamdi, 542 U.S. at 509, 124 S.Ct. 2633, and they have also heard claims from U.S. citizens alleging unconstitutional takings of their property by the U.S. military abroad, see, e.g., Ramirez de Arellano, 745 F.2d at 1511-12. But habeas petitions and takings claims are both much more amenable to judicial resolution than the claims raised by plaintiff in this case. Courts have been willing to hear habeas petitions (from both U.S. citizens and aliens) because “the Constitution specifically contemplates a judicial role” for claims by individuals challenging their detention by the Executive. See El-Shifa, 607 F.3d at 848-49; see also Boumediene v. Bush, 553 U.S. 723, 745, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (explaining that the Suspension Clause “protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account”). While the Suspension Clause reflects a “textually demonstrable commitment” of habeas corpus claims to the Judiciary, see Baker, 369 U.S. at 217, 82 S.Ct. 691, there is no “constitutional commitment to the courts for review of a military decision to launch a missile at a foreign target,” El-Shifa, 607 F.3d at 849. Indeed, such military decisions are textually committed" }, { "docid": "13456551", "title": "", "text": "allocation of foreign relations and national security powers to the President, the unitary chief executive” and Commander in Chief of the Army and Navy). Moreover, any post hoc judicial assessment as to the propriety of the Executive’s decision to employ military force abroad “would be anathema to ... separation of powers” principles. See El-Shifa, 607 F.3d at 845. The first, fourth, and sixth Baker factors thus all militate against judicial review of plaintiffs’ claims, since there is a “textually demonstrable constitutional commitment” of the United States’s decision to employ military force to coordinate political departments (Congress and the Executive), and any after-the-fact judicial review of the Executive’s decision to employ military force abroad would reveal a “lack of respect due coordinate branches of government” and create “the potentiality of embarrassment of multifarious pronouncements by various departments on one question.” Baker, 369 U.S. at 217, 82 S.Ct. 691. The mere fact that the “foreign target” of military action in this case is an individual — rather than alleged enemy property — does not distinguish plaintiffs claims from those raised in El-Shifa for purposes of the political question doctrine. The D.C. Circuit has on several occasions dismissed claims on political question grounds where resolution of those claims would require a judicial determination as to the propriety of the use of force by U.S. officials against a specific individual abroad. For example, the court in Harbury v. Hayden dismissed as non-justiciable the claims of an American widow who alleged that her husband — a Guatemalan rebel fighter — had been tortured and killed by Guatemalan army officers working in conjunction with the CIA in Guatemala. See 522 F.3d at 415. Notwithstanding the plaintiffs contention that “U.S. officials were responsible for physically abusing and killing” her husband, the D.C. Circuit concluded that “the political question doctrine plainly applies to this case.” Id. at 420. Similarly, in Schneider v. Kissinger, the D.C. Circuit deemed non-justiciable the claims raised by the decedents of a Chilean general, who alleged that the United States had caused the general’s kidnaping, torture, and death in furtherance of its Cold War" }, { "docid": "13456545", "title": "", "text": "and assess “the capabilities of the [alleged] terrorist operative to carry out a threatened attack, what response would be sufficient to address that threat, possible diplomatic considerations that may bear on such responses, the vulnerability of potential targets that the [alleged] terrorist] may strike, the availability of military and nonmilitary options, and the risks to military and nonmilitary personnel in attempting application of non-lethal force.” Defs.’ Mem. at 26; see also Mot. Hr’g Tr. 38:6-14. Viewed through these prisms, it becomes clear that plaintiffs claims pose precisely the types of complex policy questions that the D.C. Circuit has historically held non-justiciable under the political question doctrine. Most recently, in El-Shifa v. United States the D.C. Circuit examined whether the political question doctrine barred judicial resolution of claims by owners of a Sudanese pharmaceutical plant who brought suit seeking to recover damages after their plant was destroyed by an American cruise missile. President Clinton had ordered the missile strike in light of intelligence indicating that the plant was “ ‘associated with the [Osama] bin Ladin network’ and ‘involved in the production of materials for chemical weapons.’ ” El-Shifa, 607 F.3d at 838 (internal citation omitted). The plaintiffs maintained that the U.S. government had been negligent in determining that the plant was tied “to chemical weapons and Osama bin Laden,” and therefore sought “a declaration that the government’s failure to compensate them for the destruction of the plant violated customary international law, a declaration that statements government officials made about them were defamatory, and an injunction requiring the government to retract those statements.” Id. at 840. Dismissing the plaintiffs’ claims as non-justiciable under the political question doctrine, the D.C. Circuit explained that “[i]n military matters ... the courts lack the competence to assess the strategic decision to employ force or to create standards to determine whether the use of force was justified or well-founded.” Id. at 844. Rather than endeavor to resolve questions beyond the Judiciary’s institutional competence, the court held that “[i]f the political question doctrine means anything in the arena of national security and foreign relations, it means the courts" } ]

[ { "docid": "17049199", "title": "", "text": "Hallstrom, deciding on a literal interpretation, the Supreme Court ruled that RCRA’s notice provision had to be strictly complied with, and left no discretion with the district court as to compliance with its requirements. Hence, the Court held in that ease that the RCRA suit had to be dismissed when the statutorily required notice to governmental agencies was given after suit was filed, even when the district court stayed the suit for period of time prescribed by the notice provision. Even though the stay seemingly fulfilling the object of the notice requirement, giving agencies time to decide whether to enforce the statute thereby obviating the need for a citizen suit, the Court required dismissal, even after years of litigation and a determination on the merits. It applied the general rule that “if an action is barred by the terms of a statute, it must be dismissed.” 493 U.S. at 31, 110 S.Ct. at 311, 107 L.Ed.2d at 249. CUSA argues that a similarly strict approach here requires dismissal of the RCRA claim. The defendant maintains that Two Rivers has not strictly complied with the statute because it never gave formal notice to CUSA of the claim. CUSA also asserts that Hallstrom eliminated constructive notice as satisfying the notice requirement. In support of the latter argument, it also cites Walls v. Waste Resource Corp., 761 F.2d 311, 317 (6th Cir.1985); and Reeger v. Mill Service, Inc., 593 F.Supp. 360, 362 (W.D.Pa.1984). We fail to see how Hallstrom controls the RCRA notice issue in this case. In Hallstrom, the plaintiff gave notice to the alleged violator but not to the EPA or the state environmental agency. The plaintiff filed suit a year later. Then the plaintiff gave notice to the agencies, after the defendant’s motion for summary judgment raised the issue. The district court ruled that the postfiling notice satisfied the statute by deciding that the agencies would have 60 days to determine if they would, intervene, thereby fulfilling the purpose of the notice requirement. As noted above, the Supreme Court disagreed and decided that notice had to come before suit was" } ]

[ { "docid": "15341008", "title": "", "text": "which constitute the open dumping of solid and/or hazardous wastes in violation of 42 U.S.C. § 6945; and (3) created an imminent or substantial endangerment to health and/or the environment as a result of (1) and (2). Plaintiffs’ Complaint at 16. Defendant Emhart has moved to dismiss plaintiffs’ RCRA claim, contending: (1) that plaintiffs failed to comply with- the notice requirement of RCRA; and (2) that plaintiffs’ RCRA claim is based exclusively on the storage, disposal, and open dumping of PCBs, a substance regulated exclusively by other federal environmental laws. A. Insufficient Notice The citizen suit provision of RCRA, 42 U.S.C. § 6972(a), provides that: [A]ny person may commence a civil action on his own behalf — against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or ... against any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6972(a)(l)(A-B) (Supp.1987). A citizen suit may not be commenced under RCRA, however, prior to the expiration of a particular period of time after the prospective plaintiff has given notice of the alleged violation or endangerment to the EPA administrator, the State in which the alleged violation or endangerment occurred, and the alleged violator or creator of the endangerment. See 42 U.S.C. § 6972(b)(1)(A); (b)(2)(A) (Supp.1987). Such notice must include “sufficient information to permit the recipient to identify:” (1) the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated; (2) the activity alleged to constitute a violation; (3) the person or persons responsible for the alleged violation; (4) the date or dates of the violation; and (5) the full name, address, and telephone number of the person giving notice. 40 C.F.R. § 254.3(a) (1987). The primary purpose not only of RCRA’s, but of the other federal environmental law’s notice requirements is “to give the EPA" }, { "docid": "16122635", "title": "", "text": "at 40 C.F.R. § 135.3, and include language regarding the content of the notices that is almost identical to the language in 40 C.F.R. § 254.3. By contrast, in enacting RCRA, Congress did not expressly direct the EPA to promulgate regulations relating to the notice requirements of 42 U.S.C. § 6972(b)(2)(A). Instead, the EPA promulgated regulations pursuant to § 6972 generally, in which it outlined “the procedures to be followed” and prescribed “the information to be contained in the notices.” 42 FR 37214 (July 20, 1977); see also 42 FR 56114 (Oct. 21, 1977). Thus, while Ninth Circuit cases such as Center for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794 (9th Cir.2009), and Washington Trout v. McCain Foods, Inc., 45 F.3d 1351 (1995), have found that strict compliance with the CWA regulations is a prerequisite to suit, this court finds no indication by Congress that it intended that the applicable RCRA regulations apply with the same force. The court agrees with the courts that have concluded that strict compliance with the RCRA notice requirements is not a jurisdictional prerequisite, and finds that the notices served by Gregory Village included sufficient information regarding Gregory Village’s intent to sue. 3. Equitable indemnity claim CCCSD argues that the claim for equitable indemnity should be dismissed as to the District, as premature under California Government Code § 901, because Gregory Village has not been served with a com plaint giving rise to such a claim. The motion is GRANTED, based on the concession by counsel for Gregory Village at the hearing, that the claim is unripe and should be dismissed without prejudice, as to the District. 4. Attorney’s fees Chevron and M B Enterprises seek an order striking the cause of action for attorney’s fees, and the prayer for attorney’s fees. For the reasons stated at the hearing, the motion is GRANTED as to the cause of action for attorney’s fees, and is DENIED as to the prayer for attorney’s fees. 5. Public nuisance claim Chevron and M B Enterprises argue that the cause of action for nuisance should be dismissed" }, { "docid": "88470", "title": "", "text": "City of W. Sacramento, 905 F.Supp. 792, 799 (E.D.Cal.1995). Comparison with notice letters held to be sufficient can be instructive. In reversing a decision that a notice letter was insufficient because it did not identify particular dates for alleged violations, the Ninth Circuit noted that the letter “describes the problem of storm water pollution in the [relevant river;] specifically identifies pollutants associated with [the defendant’s] operations; describes in detail the sources and practices that lead to the discharge of contaminated storm water from [the defendant’s] site; ... suggests solutions for [the defendant’s] storm and non-storm water discharge problems, including grading, berming, roofing, structural controls to prevent the discharge of contaminated water, and a filtration system to treat contaminated water”; and discusses “Permit requirements in detail and directs the reader’s attention to the specific Permit sections that explain what is required.” Waterkeepers N. Cal. v. AG Indus. Mfg., 375 F.3d 913, 917 (9th Cir.2004). Although the Ninth Circuit did not quote the notice letter extensively, it is clear from the court’s description that the letter provided enough information to make the defendant’s alleged violations “easy to understand.” Id. at 918 n. 2. Similarly, the Third Circuit held valid a letter that contained a chronological list of particular violations. See Pub. Interest Research Group v. Hercules, Inc., 50 F.3d 1239, 1242 n. 3 (3d Cir.1995). The precise information that the letter disclosed is not clear from the court’s opinion, but an attachment to the letter listed at least specific pollutants, specific locations, and specific permits the defendant was alleged to have violated. See id. at 1242^43 & n. 3. 2. Plaintiffs’ Notice Letters Plaintiffs’ notice letters exhibit no such specificity. They are hardly more helpful than a letter telling Defendants merely that they have violated the CWA at each listed well site. Aiming for breadth of coverage, the letters substitute sweeping language for the particularity required by 40 C.F.R. § 135.3(a). They consistently fail to specify the activities that constituted the alleged violations and the laws that Defendants were allegedly violating. To illustrate, we will consider a representative notice letter, reproduced in" }, { "docid": "7350257", "title": "", "text": "RCRA and CWA Causes of Action. Section 7002(b)(1) authorizes a private cause of action under RCRA provided that “[n]o action may be commenced” under that section “prior to sixty days after the plaintiff has given notice of the violation ... to any alleged violator.” 42 U.S.C. § 6972(b)(1). The CWA contains a similar provision. See 33 U.S.C. § 1365(b)(1)(A). Defendant contends that the claims under these Acts should both be dismissed because the combined notice it received of them was deficient. In support of dismissal of the RCRA claims, defendant also cites the notice regulation contained in 40 C.F.R. § 254. For dismissal of the CWA claim, Westinghouse cites Loveladies Property Owners Ass’n v. Raab, 430 F.Supp. 276 (D.N.J.1975), aff'd mem. 547 F.2d 1162 (3d Cir.1976), cert. denied, 432 U.S. 906, 97 S.Ct. 2949, 53 L.Ed.2d 1077 (1977). Defendant does not contend that plaintiffs violated the sixty day waiting period; only that substantively the notices were deficient. Specifically, Westinghouse complains that plaintiffs’ allegations are sweeping, nonspecific and fail to set forth, as required by 40 C.F.R. § 254.3(a), the specific permit, standard, regulation, condition, requirement or order allegedly violated, the activity causing the violations, the persons responsible for the violations, and the dates of the violations. In construing the statutory notice provisions, we are guided by Proffitt v. Commissioners, Township of Bristol, 754 F.2d 504 (3d Cir.1985). There, discussing the notice provisions at issue in the case at bar, the Third Circuit Court of Appeals, stated: The purpose of the sixty-day notice requirement is to obviate the need for resort to the courts by prompting either administrative enforcement of the laws or voluntary compliance by alleged violators. See, e.g., Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231, 243 (3d Cir.1980); Friends of the Earth v. Carey, 535 F.2d 165, 175 (2d Cir.1976) (construing identical notice provision of the Clean Air Act, 42 U.S.C. § 7604(b)(1)(A)). Nevertheless, these citizen suit provisions evince a legislative intent that “citizen[s] are not to be treated as nuisances or troublemakers but rather as welcome participants in the vindication of environmental interests.” Friends of" }, { "docid": "11550483", "title": "", "text": "Brod court relied in part on a regulation that fleshes out what information a RCRA notice must contain. That regulation states: Notice regarding an alleged violation of a permit, standard, regulation, condition, requirement, or order which has become effective under this Act shall include sufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of the violation, and the full name, address, and telephone number of the person giving notice. 40 C.F.R. § 254.3(a). A nearly identical regulatory notice provision was at play in Atlantic States Legal Foundation, Inc. v. Stroh Die Casting Co., 116 F.3d 814, 819 (7th Cir.1997), a case in which the Seventh Circuit considered what constitutes sufficient pre-suit notice under the Clean Water Act (“CWA”), concluding that not every source of pollution must be identified. Because of the similarities between the notice provisions of the CWA and RCRA, courts sometimes rely on cases from one context to decide cases in the other. See, e.g., Brod, 653 F.3d at 166; Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 401 (4th Cir.2011) (citing Hallstrom in a Clean Water Act case because the CWA’s notice requirement is “identical” to RCRA’s). So, although the Seventh Circuit has not considered what information must be contained in a RCRA notice, Atlantic States is applicable to this case. The upshot of Atlantic States is that, “[i]n practical terms, the notice must be sufficiently specific to inform the alleged violator about what it is doing wrong, so that it will know what corrective actions will avert a lawsuit.” 116 F.3d at 819. Considering this relatively generous un derstanding of notice in the Seventh Circuit, the mere absence of the term “Lowe Process waste oil” in, Evanston’s notice would not render that notice insufficient if the notice otherwise provided “sufficient information to permit the recipient to identify” the endangerment alleged in the complaint. But the Court concludes that" }, { "docid": "7350260", "title": "", "text": "discharging pollutants into the navigable waters of the United States without a permit. This notice was sent to Westinghouse as a person responsible for the violations. We reject out of hand Westinghouse’s contention that the specific regulations should have been mentioned in the notice. It is sufficient that information easily leading to the regulations was supplied. As we read the notice, it is arguably deficient in failing to set forth: (1) the activity alleged to constitute the violations, and (2) the dates of the violations. We must bear in mind, however, that the regulations required the plaintiffs only to supply “sufficient information to permit the recipient to identify” these aspect, among others, of the claim. 40 C.F.R. § 254.3(a). The EPA and the Pennsylvania Department of Environmental Resources (DER) had been conducting investigations of the contaminated sites listed in the notice for many months prior to the date of the notice. In this context, Westinghouse had sufficient actual notice of the alleged violations to respond in an adequate fashion to plaintiffs. Accordingly, their claim of an insufficient notice must be rejected. E. Plaintiffs Have Stated a Good Cause of Action Under RCRA For Violations of the Permit Requirements and Regulations Promulgated Pursuant to That Act. Westinghouse next contends that, because it never intentionally used its plant site as a dump, it did not have to meet the permit requirement and regulations promulgated to enforce RCRA in connection with disposal facilities. Conversely, plaintiffs contend that Westinghouse did, in fact, intentionally dump hazardous wastes on its Gettysburg plant site along with some accidental dumping. In addition to cleaning grates used in its factory over a storm drain leading to the water supply for neighbors, plaintiffs argue that the above conduct violates RCRA in respect to hazardous waste facilities and also RCRA open dumping regulations. After review of the pertinent statutory sections and regulations we conclude that plaintiffs have stated a good cause of action for a hazardous waste facility disposal violation based upon the storage of solvents on two areas of the plant. Plaintiffs have failed to make out an open dumping" }, { "docid": "12409024", "title": "", "text": "at 27-28, 110 S.Ct. at 309 (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 466, 95 S.Ct. 1716, 1723, 44 L.Ed.2d 295 (1975)). Rather, it is a product of ambiguities in the statute which require resort to unwieldy regulations. In Hallstrom, the plaintiffs did not even attempt to provide notice to state and federal agencies even though such notice was clearly required on the face of the citizens suit provision of the Resource Conservation and Recovery Act (RCRA). The RCRA’s citizens suit provision unambiguously provided that “no action may be commenced ... (1) prior to sixty days after the plaintiff has given notice of the violation (A) to the Administrator; (B) to the State in which the alleged violation occurs; and (C) to any alleged violator....” 42 U.S.C. § 6972(b) (1982). The RCRA further conspicuously defined “Administrator” as “the Administrator of the Environmental Protection Agency.” 42 U.S.C. § 6903(1). Thus, the statute was clear in specifying to whom pre-suit notice must be directed. Plaintiffs here, unlike those in Hallstrom, have provided all the notice required by the language of the ESA Neither the provisions of the ESA nor Reorganization Plan Number 4 of 1970 specify whether the Secretary of the Interior or the Secretary of Commerce should receive pre-suit notice. Only upon resort to the regulations governing “Wildlife and Fisheries,” which are nowhere cross-referenced by the notice provisions of the ESA, is it possible to infer which Secretary should receive notice. Our decision in Public Interest Research Group of New Jersey, Inc. v. Hercules, 50 F.3d 1239 (3d Cir.1995), is helpful to explain why plaintiffs’ suit is not foreclosed. There we construed the notice provision of the Clean Water Act, 33 U.S.C. § 1365(b), and its regulations to determine whether the plaintiffs’ notice letter had identified the alleged violations with sufficient particularity to provide the recipient with effective notice. Id. at 1241-42. We expressly relied on the regulations enacted under the RCRA in concluding that, for the content of the notice letter to be adequate, it must provide “the EPA and the state with enough information to enable" }, { "docid": "2663362", "title": "", "text": "(9th Cir.1998). In this case, WaterKeepers contends that AG Industrial has violated the Permit by discharging contaminated storm and non-storm water; by. failing to develop and implement adequate BMPs; by failing to develop and implement an adequate SWPPP; and by failing to develop and implement an adequate monitoring and reporting program. III. The Clean Water Act requires citizen plaintiffs to notify alleged violators of their intent to sue at least sixty days before filing a complaint. 33 U.S.C. § 1365(b)(1)(A). In our circuit, compliance with this notice provision is required for jurisdiction. See Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 995 (9th Cir.2000); cf. Hallstrom v. Tillamook County, 493 U.S. 20, 31, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (holding that notice is a mandatory prerequisite to suit under the Resource Conservation and Recovery Act but declining to decide whether the notice requirement “is jurisdictional in the strict sense of the term”). In order to comply, a citizen plaintiff must send an intent-to-sue letter that includes sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, ... [and] the date or dates of such violation. 40 C.F.R. § 135.3(a). “The key language in the notice regulation is the phrase ‘sufficient information to permit the recipient to identify’ the alleged violations and bring itself into compliance.” Cmty.Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir.2002) [hereinafter Bosma Dairy ]. Notice is sufficient if it is reasonably specific and if it gives “the accused company the opportunity to correct the problem.” San Francisco BayKeeper, 309 F.3d at 1158 (quoting Atl. States Legal Found., Inc. v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th Cir.1997)). Although the Act’s notice requirement is “strictly construed,” Southwest Marine, 236 F.3d at 998, plaintiffs are not required to “list every specific aspect or detail of every alleged violation.” Bosma Dairy, 305 F.3d at 951 (quoting Pub. Interest Research Group v. Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir.1995)). We" }, { "docid": "16122633", "title": "", "text": "true that Gregory Village delayed the required service on the EPA Administrator and the Attorney General until after the present motions had been filed, it is also true that RCRA does not specify a particular time by which the service must be completed. Finally, the court finds that while Gregory Village did not strictly comply with certain provisions set forth in the regulations implementing the RCRA no tice requirements, which appear at 40 C.F.R. part 254, that failure does not deprive the court of subject matter jurisdiction. For example, under 40 C.F.R. § 254.3, the notice shall include sufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of the violation, and the full name, address, and telephone number of the person giving notice. 40 C.F.R. § 254.3(a). The notices did not provide Gregory Village’s address and telephone number — just the address and telephone number of its counsel — and also did not provide precise “dates of the violation,” or the exact “activity alleged to constitute a violation.” Defendants contend that just as compliance with the statutory notice requirements is a prerequisite to filing suit under RCRA, so is compliance with the implementing regulations. As there appears to be no Circuit or Supreme Court authority on this question, defendants rely on cases interpreting the Clean Water Act and what defendants claim are almost identical notice requirements. The citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365, provides that no action may be brought prior to sixty days after the plaintiff has provided notice of the alleged violation to the EPA Administrator, the state in which the alleged violation occurred, and the alleged violator. 33 U.S.C. § 1365(b)(1). The statute adds that “[njotiee under this subsection [subsection (b) ] shall be given in such manner as the Administrator shall prescribe by regulation.” 33 U.S.C. § 1365(b) (emphasis added). The regulations promulgated by the Administrator appear" }, { "docid": "16122632", "title": "", "text": "Agency, the California State Water Resources Control Board, the California Integrated Waste Management Board, and the California Natural Resources Agency. All the notices were sent well before the statutory deadline (90 days prior to filing suit), and the complaint alleges that Gregory Village timely served the required RCRA notices. See Cplt ¶¶ 40-43 Under § 6972(b)(2)(F), “[w]henever any action is brought under subsection (a)(1)(B) of this section in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General of the United States and with the Administrator.” 42 U.S.C. § 6972(b)(2)(F). The court agrees with Gregory Village that it would have been impossible to allege in the complaint that the complaint had been served on the EPA Administrator and the U.S. Attorney General, before the complaint had even been filed. Moreover, the statute does not provide that service of the complaint on the EPA Administrator and the Attorney General is a precondition to suit, just that a copy of the complaint “shall be served.” While it is true that Gregory Village delayed the required service on the EPA Administrator and the Attorney General until after the present motions had been filed, it is also true that RCRA does not specify a particular time by which the service must be completed. Finally, the court finds that while Gregory Village did not strictly comply with certain provisions set forth in the regulations implementing the RCRA no tice requirements, which appear at 40 C.F.R. part 254, that failure does not deprive the court of subject matter jurisdiction. For example, under 40 C.F.R. § 254.3, the notice shall include sufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of the violation, and the full name, address, and telephone number of the person giving notice. 40 C.F.R. § 254.3(a). The notices did not provide Gregory Village’s address and telephone number — just the address" }, { "docid": "15341009", "title": "", "text": "waste which may present an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6972(a)(l)(A-B) (Supp.1987). A citizen suit may not be commenced under RCRA, however, prior to the expiration of a particular period of time after the prospective plaintiff has given notice of the alleged violation or endangerment to the EPA administrator, the State in which the alleged violation or endangerment occurred, and the alleged violator or creator of the endangerment. See 42 U.S.C. § 6972(b)(1)(A); (b)(2)(A) (Supp.1987). Such notice must include “sufficient information to permit the recipient to identify:” (1) the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated; (2) the activity alleged to constitute a violation; (3) the person or persons responsible for the alleged violation; (4) the date or dates of the violation; and (5) the full name, address, and telephone number of the person giving notice. 40 C.F.R. § 254.3(a) (1987). The primary purpose not only of RCRA’s, but of the other federal environmental law’s notice requirements is “to give the EPA an opportunity to resolve issues regarding the interpretation of complex environmental standards by negotiation, unhindered by the threat of an impeding private lawsuit,” and thereby reduce the volume of costly private environmental litigation. Walls, 761 F.2d at 317. Although compliance with RCRA’s notice requirement “is a jurisdictional prerequisite to bringing suit against private defendants under the citizen suit provisions of RCRA,” id., the notice requirement should be applied flexibly “to avoid hindrance of citizen suits through excessive formalism.” Proffitt v. Commissioners, Township of Bristol, 754 F.2d 504, 506 (3d Cir.1985), quoted with approval in, Fishel v. Westinghouse Electric Corp., 617 F.Supp. 1531, 1536 (M.D.Pa.1985). With these guiding principles in mind, the Court now turns its attention to defendant Emhart’s argument. Emhart does not contend that plaintiffs violated the waiting-period provisions of RCRA’s notice requirement, or that plaintiffs failed to provide them with any notice whatsoever. Instead, Emhart claims that the notice plaintiffs provided was substantively deficient. Although the notice provided by plaintiffs arguably was deficient in some respects, it clearly set forth: (1) the specific" }, { "docid": "15341007", "title": "", "text": "Court to interpret section 9607(a) liberally to permit recovery of civil penalties and injunctive relief. To do so, however, would be to strain beyond reason the language, scheme, and legislative history of the statute. See State of New York v. Shore Realty Corp., 759 F.2d 1032, 1049-50 (2d Cir.1985); Cadillac Fairview/California, Inc. v. Dow Chemical Co., 21 E.R.C. 1108, 1115-17 (C.D.Cal.1984) (both holding that injunctive relief unavailable under section 9607(a)). See also 42 U.S.C. §§ 9606(b); 9609 (federal government may seek civil penalties only in two narrow circumstances — for violation of section 106 abatement order and for failure to comply with requirements of section 9608). Therefore, to the extent plaintiffs’ complaint seeks civil penalties and injunctive relief under CERCLA, it must be dismissed. II. RCRA Claim Plaintiffs’ Third Cause of Action alleges that defendants Emhart and Duracell: (1) stored and disposed of and continue to store and dispose of hazardous waste without a RCRA permit in violation of 42 U.S.C. § 6925; (2) engaged in and continue to engage in solid waste management practices which constitute the open dumping of solid and/or hazardous wastes in violation of 42 U.S.C. § 6945; and (3) created an imminent or substantial endangerment to health and/or the environment as a result of (1) and (2). Plaintiffs’ Complaint at 16. Defendant Emhart has moved to dismiss plaintiffs’ RCRA claim, contending: (1) that plaintiffs failed to comply with- the notice requirement of RCRA; and (2) that plaintiffs’ RCRA claim is based exclusively on the storage, disposal, and open dumping of PCBs, a substance regulated exclusively by other federal environmental laws. A. Insufficient Notice The citizen suit provision of RCRA, 42 U.S.C. § 6972(a), provides that: [A]ny person may commence a civil action on his own behalf — against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or ... against any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous" }, { "docid": "13699853", "title": "", "text": "it was reasonable for FEMA to conclude that this “new information” does not reveal effects of the action that may affect listed species in a manner or to an extent not previously considered. Therefore, FEMA’s failure to reinitiate consultation can not be considered arbitrary and capricious. The Court will now focus on two new Section 7 arguments raised by Plaintiffs with regards to the Sea Turtles. Plaintiffs’ claim that the DOI, and its subsidiary, the FWS, violated Section 7 of the ESA by failing to advise FEMA that the Sea Turtles may be present at the site of the Project. Complaint II ¶41. The Court notes, however, that since the alleged harm occurred in Vessup Bay, jurisdiction over the Sea Turtles in this matter rests with the Secretary of Commerce and the NMFS. See Hawksbill Sea Turtle, 126 F.3d at 470-71. Accordingly, Plaintiffs can not prevail in their claim against the DOI and the FWS. Plaintiffs also claim that FEMA violated its procedural obligations under section 7(a)(2) when it failed to contact and consult with the NMFS prior to the construction of the housing project. Complaint II ¶ 44. Although FEMA arguably violated the Section 7(c)(1) ESA by failing to contact the NMFS prior to the beginning of construction to determine if any endangered or threatened species “may be present” in the area of the proposed action, the Court need not spend much time discussing this alleged violation. FEMA has ultimately brought itself in compliance by initiating and completing informal consultation as to the Sea Turtles. Although this consultation did occur over seven months after Defendants had commenced construction on the Project, it occurred long, before Plaintiffs provided the statutorily required notice to institute their lawsuit. Given that the purpose of the notice requirement is to give the violator an opportunity to bring itself in compliance with the ESA see Hallstrom v. Tillamook County, 493 U.S. 20, 26, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989); Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc., 50 F.3d 1239, 1249 (3d Cir.1995) and FEMA successfully did so before the notice" }, { "docid": "12409025", "title": "", "text": "notice required by the language of the ESA Neither the provisions of the ESA nor Reorganization Plan Number 4 of 1970 specify whether the Secretary of the Interior or the Secretary of Commerce should receive pre-suit notice. Only upon resort to the regulations governing “Wildlife and Fisheries,” which are nowhere cross-referenced by the notice provisions of the ESA, is it possible to infer which Secretary should receive notice. Our decision in Public Interest Research Group of New Jersey, Inc. v. Hercules, 50 F.3d 1239 (3d Cir.1995), is helpful to explain why plaintiffs’ suit is not foreclosed. There we construed the notice provision of the Clean Water Act, 33 U.S.C. § 1365(b), and its regulations to determine whether the plaintiffs’ notice letter had identified the alleged violations with sufficient particularity to provide the recipient with effective notice. Id. at 1241-42. We expressly relied on the regulations enacted under the RCRA in concluding that, for the content of the notice letter to be adequate, it must provide “the EPA and the state with enough information to enable them intelligently to decide whether” to initiate an enforcement action, and must give the alleged violator “enough information to be able to bring itself into compliance.” Id. at 1249. My colleagues maintain that Hercules is of no use here since the focus of that case “was on the contents of the notification given.” Majority at 472. Indeed, we drew this distinction in Hercules. 50 F.3d at 1249 (“The Supreme Court’s focus in Hallstrom was on the timing of the notice, not on its content.”). We did so, not as an end in itself, but because there was “no express requirement in the statute pertaining to the content of a notice letter.” Id. Under the CWA, Congress has “delegated to the EPA the authori ty to determine the necessary contents of a notice letter.” Id.; see also 33 U.S.C. § 1365(b) (“Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.”). Congress has incorporated into the ESA no such explicit delegation of authority to specify who should receive presuit" }, { "docid": "6275502", "title": "", "text": "¶ 182.) LG & E and PPL argue that these claims must be dismissed. Pre-Suit Notice. LG & E and PPL first argue that the Plaintiffs have not given sufficient notice of the alleged RCRA violations. As with the CAA, RCRA contains notice requirements, which require plaintiffs to include “sufficient information to permit the recipient to identify” the specific standard or regulation allegedly violated, the activity alleged to constitute a violation, and the date or dates of the violation. 40 C.F.R. § 254.3(a). LG & E and PPL argue that “[a]s with their generic CAA claims in ¶¶ 193, 197 and 195, Plaintiffs have failed to provide notice of the specific nature, circumstances, date or duration of the alleged RCRA violations.” (Defs.’ Mem. [DN 29-1] 30.) In their NOI, the Plaintiffs state that the “specific dates of violations of RCRA ... are, on information and belief, daily or near daily since at least 2008....” (NOI Letter [DN 1-2] 9 n. 2.) LG & E and PPL argue that this is insufficient to give them adequate notice of the alleged RCRA violations. LG & E and PPL argue that the Plaintiffs have similarly failed to give adequate notice of their storm water claims, as the NOI fails to provide the date of a violation, the location of an outfall, or a description of the nature of a violation— stating only that “emissions are regularly in the form of dust traveling in the air, as well as in the form of storm water runoff from the Cane Run site,” which emissions take place “on at least a weekly basis since at least 2008.” (Id. at 9.) In response to this argument, the Plaintiffs again rely on Hercules. They also argue that their NOI contained enough detail, as it incorporated the NOVs, which list examples of dates and times on which LG & E allegedly violated regulations. (Pis.’ Mem. [DN 41] 30-31.) The Court finds that the NOI contained sufficient detail with respect to the RCRA claims which are based on alleged emissions documented, by date and time, in the NOVs. However, as" }, { "docid": "13699795", "title": "", "text": "before hearing oral argument on Plaintiffs motion for a preliminary injunction, the court transferred the case to the District Court of the Virgin Islands. On June 6, 1996, Judge Finch recused himself from hearing the ease, which was then assigned to United States District Judge Stanley S. Brotman, Senior Judge of the District of New Jersey, sitting by designation. Plaintiffs alleged that, in planning for and providing the temporary emergency shelters, Defendants violated numerous provisions of the ESA and caused irreparable harm to several endangered and threatened species and their habitats in the area of and around Vessup Bay in St. Thomas. Specifically, Plaintiffs alleged harm to the Virgin Islands Tree Boa (“Tree Boa”), the Hawksbill Sea Turtle, the Green Sea Turtle, and other unnamed species, and sought preliminary in-junctive relief. The District Court, after a hearing, denied Plaintiffs’ motion on collateral estoppel grounds. Hawksbill Sea Turtle v. Federal Emergency Management Agency, 939 F.Supp. 1195 (D.Vi.1996). On appeal, the Third Circuit found that this Court had improperly relied upon the factual findings of Judge Finch. Accordingly, it reversed the Court’s opinion and order and remanded the case for reconsideration of Plaintiffs’ motion for preliminary injunction. Hawksbill Sea Turtle v. Federal Emergency Management Agency, 126 F.3d 461, 478 (3d Cir.1997). It also directed the Court to dismiss Plaintiffs’ claims with respect to the Hawksbill and Green Sea Turtles (collectively, “Sea Turtles”) due to their failure to comply with the notice requirements of the ESA. Id. The Third Circuit noted, however, that, since filing the Complaint, Plaintiffs had provided the requisite notice and were now at liberty to refile their claims and request that the matter be consolidated with the Tree Boa proceedings presently before this Court. Id. at 473. On remand, the claims with respect to the Sea Turtles were dismissed, and Plaintiffs then refiled those claims in a separate complaint (“Complaint II”). Pursuant to the suggestion by the Third Circuit and Fed. R.Civ.P. 42, the Court consolidated the claims into the present action, and also consolidated the preliminary injunction hearing and final hearing pursuant to Fed.R.Civ.P. 65. On October 31," }, { "docid": "11550482", "title": "", "text": "Evanston further contends that the companies were on notice that the methane detected could be produced by coal tar because methane is a natural metabolite of coal tar. Id. at 16. Nicor and ComEd disagree, arguing that a RCRA notice must identify the specific pollutant at issue and that “coal tar” and Lowe Process waste oil are not the same substance. In Brod v. Omya, Inc., 653 F.3d 156 (2d Cir.2011), the Second Circuit upheld the district court’s dismissal of a RCRA endangerment claim for lack of notice. The court explained that the complaint in that case alleged “that Omya’s practice of dumping its processing waste into unlined pits presents ‘an imminent and substantial endangerment’ in violation of § 6972(a)(1)(B) because AEEA, a toxic chemipal in the waste, is seeping into groundwater.” The pre-suit notice, however, “did not identify AEEA and arsenic as contaminants in Omya’s waste.” Id. at 168. Under those circumstances, the court concluded, the notice “did not give Omya adequate notice of the endangerment.” Id. at 168. In reaching its decision, the Brod court relied in part on a regulation that fleshes out what information a RCRA notice must contain. That regulation states: Notice regarding an alleged violation of a permit, standard, regulation, condition, requirement, or order which has become effective under this Act shall include sufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of the violation, and the full name, address, and telephone number of the person giving notice. 40 C.F.R. § 254.3(a). A nearly identical regulatory notice provision was at play in Atlantic States Legal Foundation, Inc. v. Stroh Die Casting Co., 116 F.3d 814, 819 (7th Cir.1997), a case in which the Seventh Circuit considered what constitutes sufficient pre-suit notice under the Clean Water Act (“CWA”), concluding that not every source of pollution must be identified. Because of the similarities between the notice provisions of the CWA and RCRA, courts" }, { "docid": "17565500", "title": "", "text": "42 U.S.C. § 6972(a)(1); the codification of § 6972(a)(2) remains unchanged. See Pub.L. 94-580; 42 U.S.C. § 6972(a)(2) . In addition, the EPA has promulgated regulations specifying the content of the notice \"regarding an alleged violation of a permit, standard, regulation, condition, requirement, or order,” see 40 C.F.R. § 254.3 (July 1, 1993), and the particular representatives of the state to whom notice should be directed if the state or one of its local agencies is the alleged RCRA violator. See 40 C.F.R. § 254.2 (July 1, 1993). .Citizen suits are statutorily precluded by a variety of governmental interventions, such as when the Administrator or a state is diligently prosecuting an action under RCRA or CERC-LA, is engaged in a CERCLA removal action, or has incurred costs to conduct an RI/FS. See 42 U.S.C. § 6972(b)(2). . Subchapter III of RCRA is comprised of 42 U.S.C. §§ 6921 to 6939e. Some courts have referred to \"subchapter 111” as \"subtitle C,” the designation given those provisions in the 1976 act. See Pub.L. No. 94-580. . The Court notes that plaintiffs’ complaint was amended on January 20, 1995 to add additional parties, but remains identical to the original complaint in all relevant respects, see Compl.; Am. Compl. All references herein are to the original complaint. . The Town does not address whether it was a \"person” who owned or operated a treat- menl, storage or disposal facility since the Town would be liable regardless of what type of \"person” it is deemed to be under § 6972(a)(1)(B). In any event, it is problematic whether an open, unregulated dump would be considered a \"facility.” When RCRA and CERCLA speak of a \"facility,” it is more in keeping with the construction, operation and maintenance, of a sanitary landfill subject to permitting and regulation. See, e.g., United Techs., 821 F.2d at 717, 721-23; see also South Road Assocs. v. International Bus. Mach. Corp., 216 F.3d 251, 256 (2d Cir. 2000) (\"[w]e put aside for now (and ultimately decide that we need not reach) the question whether [the open dump] site is a ‘facility for the" }, { "docid": "2663363", "title": "", "text": "recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, ... [and] the date or dates of such violation. 40 C.F.R. § 135.3(a). “The key language in the notice regulation is the phrase ‘sufficient information to permit the recipient to identify’ the alleged violations and bring itself into compliance.” Cmty.Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir.2002) [hereinafter Bosma Dairy ]. Notice is sufficient if it is reasonably specific and if it gives “the accused company the opportunity to correct the problem.” San Francisco BayKeeper, 309 F.3d at 1158 (quoting Atl. States Legal Found., Inc. v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th Cir.1997)). Although the Act’s notice requirement is “strictly construed,” Southwest Marine, 236 F.3d at 998, plaintiffs are not required to “list every specific aspect or detail of every alleged violation.” Bosma Dairy, 305 F.3d at 951 (quoting Pub. Interest Research Group v. Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir.1995)). We review the adequacy of pre-suit notice de novo. San Francisco BayKeeper, 309 F.3d at 1157. A. WaterKeepers sent AG Industrial a ten-page notice letter that is significantly longer and more detailed than the notice letter we held sufficient in Southwest Marine. 236 F.3d at 1003-08. WaterKeepers’ letter describes the problem of storm water pollution in the Mokelumne River, which is a tributary to the San Joaquin River and the Delta. It specifically identifies pollutants associated with AG Industrial’s operations; describes in detail the sources and practices that lead to the discharge of contaminated storm water from AG Industrial’s site; and explains that non-storm water, contaminated by washing or hosing down dirty machinery or equipment, is flushed from AG Industrial’s site into the storm sewer system. The letter faults AG Industrial for failing to seek coverage under California’s General Permit, and accuses AG Industrial of violating the Act by discharging contaminated storm water “during at least every rain event over 0.1 inches.” Two tables attached to the letter list daily rain accumulation at area sites. The" }, { "docid": "6848348", "title": "", "text": "by the EPA and held that the plaintiffs' failure to include their identities, addresses, and phone numbers in the notice letter required dismissal of the suit. Id.; Atwell v. KW Plastics Recycling Div., 173 F.Supp.2d 1213, 1222 (M.D.Ala.2001) (interpreting the notice requirement strictly); Cal. Sportfishing Prot. Alliance v. City of Sacramento, 905 F.Supp. 792, 799 (E.D.Cal.1995) (concluding that monitoring and effluent violations are distinct and that the plaintiff must give notice of each because imprecise notice does not fulfill purpose of notice requirement). However, in recent years some courts have taken a more liberal interpretation of the notice requirements. The Third Circuit, the only circuit to have considered the adequacy of a citizen-suit notice which failed to include additional violations listed in the complaint as that at issue here, held that a citizen plaintiff's initial notice of discharge violations was broad enough to encompass additional discharge, monitoring, reporting, and record keeping violations occurring during and after the date of the notice letter. Pub. Interest Research Group v. Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir.1995). These claims, however, have to be of the same \"type.\" Id. at 1250; see also, Comfort Lake Ass'n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351, 355 (8th Cir.1998) (agreeing with Hercules that a “citizen suit is limited to violations that are closely related to and of the same type as the violations specified in the notice of intent to sue”)- Although the notice must be sufficiently adequate so that the recipients can identify the basis for the complaint, “the citizen is not required to list every specific aspect or detail of every alleged violation. Nor is the citizen required to describe every ramification of a violation.” Hercules, 50 F.3d at 1248. Hercules’ “overall sufficiency” approach focused on the purpose of the notice requirement “to provide the recipient with effective, as well as timely notice.” Id.; All. States Legal Found. Inc. v. Stroh Die Casting Co., 116 F.3d 814, 819 (7th Cir.1997) (stating that the notice must be sufficiently detailed to allow the alleged violator to know what it is doing wrong so that it" } ]

[ { "docid": "16420295", "title": "", "text": "standing, it is inappropriate ,to address class standing at the pleadings stage. Instead, plaintiffs suggest that this inquiry should be reserved for the class certification stage. Although the Ninth Circuit has yet to address these specific issues, Nissan cites the decision in Mazza v. American Honda Motor Co. in support of its argument. In Mazza, a putative class brought suit against Honda- for various violations of California state laws. 666 F.3d 581, 587 (9th Cir. 2012). While Honda was' headquartered in California and made the alleged misrepresentations in California, the transaction that caused the alleged injury (i.e., the lease or purchase of a Honda automobile) occurred in other states for the majority of class members. Id. at 590. The Ninth Circuit reversed the district court’s certification of a national class after concluding that, under California’s choice of law rules, “each class member’s consumer protection claim should be governed by the consumer protection laws of the jurisdiction in which the transaction took place.” Id. at 594. Following Mazza, I have agreed with my colleagues in this district that “[i]n analogous cases, Mazza is not only relevant but controlling, even at the pleading stage.” Cover v. Windsor Surry Co., No. 14-cv-05262-WHO, 2016 WL 520991, at *5 (N.D., Cal. Feb. 10, 2016). Accordingly, in Cover, I conducted the choice of law analysis at the pleadings stage rather than the class certification stage, and concluded that named plaintiff in that case could not assert state law claims under state laws he did not represent. Id. at *5-8, There is no hard and fast rule to apply. The Hon. Edward S. Chen has noted that “[mjany courts — including a number of courts in this District — have refused to defer consideration of these issues, treating [standing] as'a threshold matter that should be addressed at the pleading stage.” In re Carrier IQ, Inc., 78 F.Supp.3d 1051, 1069 (N.D. Cal. 2015) (citing cases). He also said that the Supreme Court has expressly recognized, in certain contexts, that courts may address class certification prior to resolving standing questions. In re Carrier IQ, Inc., 78 F.Supp.3d at 1071" } ]

[ { "docid": "19306611", "title": "", "text": "559, 207 P.3d 20. Along these very lines, it held that elements of common law fraud aren’t incorporated into a UCL claim, at least one seeking injunctive relief. Id. at 312, 93 Cal.Rptr.3d 559, 207 P.3d 20.) That being the law of the putative class’s claim, Ticketmaster pitched another argument: if class members don’t need to suffer an actual injury connected to Ticketmaster’s conduct, the class must lack standing under Article III of the Constitution. The Ninth Circuit again disagreed. First, to the extent class members “were relieved of their money” by signing up for the online coupon program at issue, that was enough of an injury to confer Article III standing. Stearns, 655 F.3d at 1021. But second, and even more importantly, the Ninth Circuit insisted that only the standing of the representative party matters anyway: “[Ojur law keys on the representative party, not all of the class members, and has done so for many years.” Id.; see also Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir.2007) (“In a class action, standing is satisfied if at least one named plaintiff meets the requirements.... Thus, we consider only whether at least one named plaintiff satisfies the standing requirements.”). The next significant case is Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (9th Cir.2012), which involved representations Honda made about an advanced braking system in Acura RL cars. The district court certified a nationwide class of consumers who bought RLs equipped with the braking system, and the Ninth Circuit vacated its order. Like Ticketmaster in Steams, Honda argued that if class members didn’t need to actually rely on the representations at issue and suffer some injury, the class lacked Article III standing. But rather than say, as it did in Steams, that only the standing of the named plaintiff matters, it cited a Second Circuit case for the opposite proposition that “[N]o class may be certified that contains members lacking Article III standing.” Id. at 594 (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir.2006)). It also immediately cited Bates and Steams," }, { "docid": "18080956", "title": "", "text": "extraterritoriality.”); Guy v. IASCO, No. B168339, 2004 WL 1354300, at *5 (Cal.Ct.App. June 17, 2004). . The analysis of class claims brought under the Labor Code differs from the analysis that applies to putative nationwide class actions brought under California statutes that do provide a cause of action for non-California plaintiffs, such as the state’s consumer protection laws. Where, for example, a product is allegedly mislabeled in California but purchased in another state, there may be a conflict of laws issue — California provides a cause of action for the mislabeling, regardless of where the product is purchased, and other states may provide a cause of action for products purchased in the state, regardless of where they were labeled. But even if another state is ultimately found to have a greater interest in applying its law to the claim, there is no question that California law provides a cause of action. Therefore, there are at least some circumstances under which a plaintiff could pursue a class action under California consumer protection law, even where the putative class includes non-California purchasers. For instance, a choice of law analysis could conclude that there is no material difference between California consumer protection law and the law of another state in which a product was purchased, in which case there would be nothing wrong with applying California law to the claims of the purchasers in that state. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 590 (9th Cir.2012). Here, however, there is no circumstance in which drivers who worked exclusively outside of Califprnia can bring claims under the California wage and hour laws asserted in this case, because California simply does not provide a cause of action for them. Therefore, the class claims must be stricken at the outset. . But see Galen v. Redfin Corp., 227 Cal.App.4th 1525, 174 Cal.Rptr.3d 847, 854-55, 2014 WL 3564056, at *5 (2014) (declining to follow Elijahjuan)." }, { "docid": "20398400", "title": "", "text": "Sprint service are located in California and thus the alleged fraudulent misrepresentations forming the basis of the claim of every Sprint subscriber nationwide emanated from California”). bb. California Choice-of-Law Analysis Since application of California law to the claims of the class does not violate due process, defendants bear the burden of showing that foreign law, rather than California law, should apply. Keilholtz, 268 F.R.D. at 340 (citing Martin v. Dahlberg, Inc., 156 F.R.D. 207, 218 (N.D.Cal.1994); see Church v. Consolidated Freightways, No. C-90-2290 DLJ, 1992 WL 370829, *4 (N.D.Cal. Sept. 14, 1992) (“This Court generally presumes that California law will apply unless defendants demonstrate conclusively that the laws of the other states will apply”)). California choice-of-law analysis proceeds in three steps: “First, the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different. Second, if there is a difference, the court examines each jurisdiction’s interest in the application of its own law under the circumstances of the particular ease to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state, and then ultimately applies the law of the state whose interest would be more impaired if its law were not applied.” McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 81-82, 105 Cal.Rptr.3d 378, 225 P.3d 516 (2010). The Ninth Circuit has noted its disapproval of applying California consumer protection law such as the UCL and CLRA to residents of other states who conducted transactions in other states. Recently, in Mazza, 666 F.3d 581, the court confronted a case in which plaintiffs had successfully sought certification of a nationwide class whose members resided in 44 jurisdictions. Id. at 587 n. 1. The court thoroughly examined the laws of the other jurisdictions and concluded that material" }, { "docid": "8501385", "title": "", "text": "request, including the deletion of all data that Yahoo has stored from non-subscribers' emails. See Opp. at 21 n.ll. At the class certification stage, however, Yahoo’s \"concern about the possible scope of an injunction if Plaintiffs are successful on the merits is premature.” See, e.g., McMillon v. Hawaii, 261 F.R.D. 536, 546 (D.Haw.2009). . The Court notes that in Mazza the defendant argued the choice of law issue in the context of Rule 23(b)(3)’s predominance requirement. 666 F.3d at 589 (“Honda contends that common issues of law do not predominate because California’s consumer protection statutes may not be applied to a nationwide class with members in 44 jurisdictions.”). The parties do not dispute that this Court must apply choice of law principles to the proposed class even though Plaintiffs do not seek certification under Rule 23(b)(3). . Plaintiffs cite Valentine v. NebuAd, Inc., 804 F.Supp.2d 1022, 1026 (N.D.Cal.2011), in support of their argument that CIPA should apply to nonresident plaintiffs, but that case is inapposite. In Valentine, the court concluded that non-resident plaintiffs had standing to bring claims under CIPA against a resident defendant where the intercepted communications were routed to the defendant’s California headquarters for analysis. Id. at 1024, 1026. The Valentine court did not address whether CIPA should apply to a nationwide class where there are material conflicts of law and the intercepted communications may never pass through California." }, { "docid": "8499530", "title": "", "text": "Plaintiff is a California citizen seeking to recover under California’s consumer protection laws, but he seeks to represent a class action on behalf of citizens of other states. Defendants ask the Court to strike Plaintiffs nationwide class allegation, citing Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (9th Cir.2012), for the proposition that California’s consumer protection laws cannot be applied nationwide. In essence, Defendants argue that Mazza stands for the proposition that California’s consumer protection laws materially differ from the laws of all other states in all cases. This overreads Mazza. Mazza did not establish “such a bright-line rule,” but rather contained a detailed choice-of-law analysis which determined that “in that case California law should not be applied to non-California residents.” Won Kyung Hwang v. Ohso Clean, Inc., C-12-06355 JCS, 2013 WL 1632697, at * 21 (N.D.Cal. Apr. 16, 2013) (emphasis in original). “Mazza did not purport to hold that nationwide classes are, as a matter of law, uncertifiable under California’s consumer protection laws.” Forcellati v. Hyland’s Inc., 876 F.Supp.2d 1155, 1159 (C.D.Cal.2012). The plaintiffs in Mazza brought a nationwide class action against Honda, alleging violations of California’s consumer protection laws related to Honda’s advertising of its collision mitigation braking system. 666 F.3d at 587. The district court certified a nationwide class, but on appeal the Ninth Circuit reversed. That court engaged in a detailed analysis of California’s choice-of-law rules and found that the differences between the consumer protection laws of California and those of other states in which class members bought cars could materially affect the outcome of that litigation. The court specifically noted that “Honda [had] exhaustively detailed the ways in which California law differs” in its briefing. Id. at 591. Such a detailed choice-of-law analysis is not appropriate at this stage of the litigation. Rather, such a fact-heavy inquiry should occur during the class certification stage, after discovery. See Donohue v. Apple, Inc., 871 F.Supp.2d 913, 922 (N.D.Cal.2012); see also In re Clorox Consumer Litigation, 894 F.Supp.2d 1224, 1237 (N.D.Cal.2012) (“Since the parties have yet to develop a factual record, it is unclear whether applying" }, { "docid": "16420294", "title": "", "text": "consider factors, such as “the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies -by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment.” See Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989). DISCUSSION I. Whether Named Plaintiffs Have Standing To Maintain a Nationwide Class Action The first question I must address is two-fold: whether it is appropriate to evaluate the named plaintiffs’ standing on behalf of the putative nationwide class at the pleadings (rather than at the class certification) stage, and if so, whether the named plaintiffs have standing to bring state law claims on behalf of a class-that includes citizens of unrepresented states. While the parties do not dispute that the named plaintiffs have standing to bring their individual claims, Nissan contends that named plaintiffs may not bring their claims for violation of the MMWA or for unjust enrichment on behalf of a nationwide class that includes citizens of unrepresented states. Plaintiffs argue that having established named plaintiffs’ standing, it is inappropriate ,to address class standing at the pleadings stage. Instead, plaintiffs suggest that this inquiry should be reserved for the class certification stage. Although the Ninth Circuit has yet to address these specific issues, Nissan cites the decision in Mazza v. American Honda Motor Co. in support of its argument. In Mazza, a putative class brought suit against Honda- for various violations of California state laws. 666 F.3d 581, 587 (9th Cir. 2012). While Honda was' headquartered in California and made the alleged misrepresentations in California, the transaction that caused the alleged injury (i.e., the lease or purchase of a Honda automobile) occurred in other states for the majority of class members. Id. at 590. The Ninth Circuit reversed the district court’s certification of a national class after concluding that, under California’s choice of law rules, “each class member’s consumer protection claim should be governed by the consumer protection laws of the jurisdiction in which the transaction took place.” Id. at 594. Following Mazza, I have agreed with my colleagues in this" }, { "docid": "8501384", "title": "", "text": ". The Court finds Yahoo’s description of the requested injunctive relief as \"setting back email services for decades” to be overly dramatic in light of the evidence in this case. Plaintiffs contest the accuracy of Yahoo's characterization of the feasibility of determining consent. Relying on testimony from Yahoo’s engineering director, Plaintiffs argue that [redacted] would ostensibly require a non-Yahoo Mail subscriber to consent to Yahoo’s scanning and interception prior to delivering the email to a Yahoo Mail subscriber. Plaintiffs further contend that [redacted] Reply at 11 (citing Straite Decl., Exh. 1 (Shue Depo.), at 105:5-25, 121:19-123:12). Furthermore, Plaintiffs argue that Yahoo \"can and does provide email services” to some Yahoo Mail subscribers without intercepting, scanning, and analyzing emails “for commercial purposes.” According to Plaintiffs, Yahoo “cannot use email to target ads to users” without consent from both the sender and receiver in the [redacted]. Yahoo therefore does not provide targeted advertising to Yahoo Mail subscribers in the [redacted]. Girard Decl., Exh. 20 (YAH00009864-65). . Yahoo also takes issue with the specific in-junctive relief that Plaintiffs request, including the deletion of all data that Yahoo has stored from non-subscribers' emails. See Opp. at 21 n.ll. At the class certification stage, however, Yahoo’s \"concern about the possible scope of an injunction if Plaintiffs are successful on the merits is premature.” See, e.g., McMillon v. Hawaii, 261 F.R.D. 536, 546 (D.Haw.2009). . The Court notes that in Mazza the defendant argued the choice of law issue in the context of Rule 23(b)(3)’s predominance requirement. 666 F.3d at 589 (“Honda contends that common issues of law do not predominate because California’s consumer protection statutes may not be applied to a nationwide class with members in 44 jurisdictions.”). The parties do not dispute that this Court must apply choice of law principles to the proposed class even though Plaintiffs do not seek certification under Rule 23(b)(3). . Plaintiffs cite Valentine v. NebuAd, Inc., 804 F.Supp.2d 1022, 1026 (N.D.Cal.2011), in support of their argument that CIPA should apply to nonresident plaintiffs, but that case is inapposite. In Valentine, the court concluded that non-resident plaintiffs had standing" }, { "docid": "20398401", "title": "", "text": "to determine whether a true conflict exists. Third, if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state, and then ultimately applies the law of the state whose interest would be more impaired if its law were not applied.” McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 81-82, 105 Cal.Rptr.3d 378, 225 P.3d 516 (2010). The Ninth Circuit has noted its disapproval of applying California consumer protection law such as the UCL and CLRA to residents of other states who conducted transactions in other states. Recently, in Mazza, 666 F.3d 581, the court confronted a case in which plaintiffs had successfully sought certification of a nationwide class whose members resided in 44 jurisdictions. Id. at 587 n. 1. The court thoroughly examined the laws of the other jurisdictions and concluded that material differences existed among them. See id. at 591 (describing differences between California laws and the laws of other states). The Ninth Circuit warned that “[cjonsumer protection laws are a creature of the state in which they are fashioned. They may impose or not impose liability depending on policy choices made by state legislatures or, if the legislators left a gap or ambiguity, by state supreme courts.” Id. It further noted that “once violation is established, there are also material differences in the remedies given by state laws.” Id. The court concluded that such differences were “material.” Id. The Mazza court next addressed the interest foreign jurisdictions have in having their laws enforced, and noted that “each state has an interest in setting the appropriate level of liability for companies conducting business within its territory.” Id. at 592. “Maximizing consumer and business welfare,” the court stated, “requires balancing competing interests,” and each state is entitled to strike the balance as it sees fit. Id. It further noted: “As it is the various states of our union" }, { "docid": "22494886", "title": "", "text": "certification is generally not the time to decide the merits of the case, yet expert witness testimony relevant to the merits often is proffered as also relevant to a prong of the certification inquiry.\" Newberg on Class Actions § 7:24. The Court of Appeals for the District of Columbia Circuit (\"D.C. Circuit\") has not yet weighed in on whether a full analysis under Daubert is required at the class-certification stage. See In re Rail Freight Fuel Surcharge Antitrust Litig. , No. 07-0489, 2016 WL 2962186, at *2 (D.D.C. May 20, 2016) ; Moore v. Napolitano , 926 F.Supp.2d 8, 16, n.2 (D.D.C. 2013) ; Kottaras v. Whole Foods Mkt., Inc. , 281 F.R.D. 16, 26 (D.D.C. 2012). Most circuit courts that have addressed the issue have found that, where an expert's testimony is critical to class certification, \"a district court must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling on a class certification motion\"-i.e., \"the district court must perform a full Daubert analysis before certifying the class.\" Am. Honda Motor Co. v. Allen , 600 F.3d 813, 815-16 (7th Cir. 2010) ; see also, e.g. , Ellis v. Costco Wholesale Corp. , 657 F.3d 970, 982 (9th Cir. 2011) (district court \"correctly applied the evidentiary standard set forth in Daubert \" at the class-certification stage); Sher v. Raytheon Co. , 419 Fed.Appx. 887, 890-91 (11th Cir. 2011) (\"Here the district court refused to conduct a Daubert -like critique of the proffered experts' qualifications. This was error.\"); In re Carpenter Co. , No. 14-0302, 2014 WL 12809636, at *3-4, 2014 U.S. App. LEXIS 24707, at *10-11 (6th Cir. Sep. 29, 2014) (district court did not abuse its discretion by analyzing expert testimony offered in support of class certification under Daubert ); In re Blood Reagents Antitrust Litig. , 783 F.3d 183, 187 (3d Cir. 2015) (\"We join certain of our sister courts to hold that a plaintiff cannot rely on challenged expert testimony, when critical to class certification, to demonstrate conformity with Rule 23 unless the plaintiff also demonstrates, and the trial court finds, that" }, { "docid": "9298868", "title": "", "text": "it must still find specific personal jurisdiction for each remaining claim. (Id. (citing Testosterone Replacement Therapy , 164 F.Supp.3d at 1048 ).) Finally, Defendants address the California Cartwright Act claims. They posit that even if there were personal jurisdiction over the California-law claims of the indirect purchaser California residents, there is no jurisdiction to bring Cartwright Act claims on behalf of non-California residents. (Id. at 28.) Defendants cite a leading treatise that stated, \"[t]he Supreme Court's recent cases point to the conclusion that neither general nor specific jurisdiction exists over nationwide class suits except in the defendant's home states.\" (Id. (quoting 2 Newberg on Class Actions , § 6.26 (5th ed. 2018) ).) Accordingly, Defendants argue that the California residents cannot sponsor the nonresident indirect purchaser claims from other states. (See id. at 29.) B. Indirect Plaintiffs' Arguments The Indirect Plaintiffs respond that personal jurisdiction exists over the Cartwright Act and other state law claims. Plaintiffs' first theory is that this Court has already determined that applying the Cartwright Act to out-of-state plaintiffs does not offend due process. (EPP/CFP Opp'n 18-19 (citing ECF No. 492, at 16-21; and In re Korean Ramen Antitrust Litig. , No. 13-cv-4115-WHO, 2017 WL 235052, at *21 (N.D. Cal. Jan. 19, 2017) ; and In re Optical Disk Drive Antitrust Litig. , No. 10-md-2143 RS, 2016 WL 467444, at *12 (N.D. Cal. Feb. 8, 2016) ).) They also argue that out-of-state plaintiffs are protected by the Cartwright Act who are injured by acts centered in California. (Id. at 19 (citing AT & T Mobility LLC v. AU Optronics Corp. , 707 F.3d 1106, 1113-14 (9th Cir. 2013) ; and In re Static Random Access Memory (SRAM) Antitrust Litig. , 580 F.Supp.2d 896, 905 (N.D. Cal. 2008) ).) Next, the Indirect Plaintiffs contend that because the Court should find specific jurisdiction over Lion Capital and Big Catch for the Cartwright Act claims, Plaintiffs may bring their remaining state law claims under two different theories. First, Federal Rule of Civil Procedure 18(a) allows a party to join independent or alternative claims against an opposing party. (Id. at" }, { "docid": "19577519", "title": "", "text": "conclusion\" that the proposed class was a fail-safe class); Hall v. Equity Nat'l Life Ins. Co. , 730 F.Supp.2d 936, 941-42 (E.D. Ark. 2010) (granting motion to strike because the suit was barred by res judicata from nationwide settlement in state court). District courts in other circuits have increasingly declined to address this particular issue at the pleading stage. See Gonzalez v. Costco Wholesale Corp. , No. 16-CV-2590 (NGG) (JO), 2018 WL 4783962, at *8 (E.D.N.Y. Sept. 29, 2018) (\"[T]his court will defer its resolution of this issue until Plaintiff files a motion for class certification.\"); Gasser v. Kiss My Face, LLC , No. 17-CV-1675-JSC, 2018 WL 4538729, at * 2 (N.D. Cal. Sept. 21, 2018) (\"[A]t this stage of the litigation, where Defendant has brought three motions to dismiss and a motion for judgment on the pleadings, the issue of whether Plaintiffs can and/or should represent consumers outside of New York and California is an issue to be raised at class certification.\"); Campbell v. Freshbev LLC , 322 F.Supp.3d 330, 337 (E.D.N.Y. 2018) (\"Given the unsettled nature of the law following Bristol-Myers , the Court will defer on this question until the plaintiff brings a motion for class certification, if he chooses to do so.\"); Chernus v. Logitech, Inc. , CV 17-673(FLW), 2018 WL 1981481, at *8 (D.N.J. Apr. 27, 2018) (same); Weisheit v. Rosenberg & Assocs., LLC , CV JKB-17-0823, 2018 WL 1942196, at *5 (D. Md. Apr. 25, 2018) (similar); Blitz v. Monsanto Co. , 317 F.Supp.3d 1042, 1047-48 (W.D. Wis. 2018) (similar). There is no Eighth Circuit authority on this question, however. Courts in other jurisdictions have analyzed pre-certification motions to strike under a 12(b)(6) standard, i.e., \"[t]he moving party has the burden of demonstrating from the face of the plaintiffs' complaint that it will be impossible to certify the class as alleged, regardless of the facts plaintiffs may be able to prove.\" Schilling v. Kenton Cnty., Ky. , No. CIV.A. 10-143-DLB, 2011 WL 293759, at *4 (E.D. Ky. Jan. 27, 2011). Because the issue has been fully briefed and appellate court guidance seems unlikely to" }, { "docid": "9298873", "title": "", "text": "Mazza v. American Honda Motor Co. , 666 F.3d 581, 587 (9th Cir. 2012), \"sets forth a three-element test to examine California choice-of-law analysis [to] determine whether a putative class is valid under the Cartwright Act.\" (ECF No. 492, at 17 (citation omitted).) Likewise, the district court opinions in Optical Disk , 2016 WL 467444, at *12-13, and Korean Ramen , 2017 WL 235052, at *21-22, as well as the Ninth Circuit decision in AT & T Mobility , 707 F.3d at 1113, all shared a common mode of analysis: choice-of-law. The Court agrees with Defendants that choice-of-law due process analysis is distinct from personal jurisdiction due process analysis. See Kulko v. Superior Court , 436 U.S. 84, 98, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978) ; Hanson v. Denckla , 357 U.S. 235, 254, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (\"The issue is personal jurisdiction, not choice of law.\"). Thus, every single choice of law case cited by Plaintiffs is not on point. The Court also agrees with Defendants that Rule 18 does not obviate the need for personal jurisdiction for each claim a plaintiff seeks to add. See Allied Prof'ls , 2017 WL 5634861, at *4 (citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc. , 557 F.2d 1280, 1289 n.8 (9th Cir. 1977) ; and 6A Wright et al., Federal Practice and Procedure , § 1588 (3d ed. 2018) ). Plaintiffs must still establish that personal jurisdiction is appropriate in accordance with constitutional due process limitations before adding claims under Rule 18. Turning to the difficult questions. In the aftermath of Bristol-Myers , several courts have determined that its reasoning applies to federal courts sitting in diversity jurisdiction because a court must apply the state personal jurisdiction statute, as well as considering constitutional limits. See Fitzhenry-Russell , 2017 WL 4224723, at *4 ; see also In re Samsung Galaxy Smartphone Mktg. & Sales Practices Litig. , 2018 WL 1576457, at *2 ; Greene , 289 F.Supp.3d at 874-75. Some of those courts have further determined that Bristol-Myers applies to federal class actions. See Chavez v. Church" }, { "docid": "8499529", "title": "", "text": "sufficient under the UCL for claims of false advertising. In re Tobacco II Cases, 46 Cal.4th 298, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009). When “a plaintiff alleges exposure to a long-term advertising campaign, the plaintiff is not required to plead with an unrealistic degree of specificity that the plaintiff relied on particular advertisements or statements.” Id. at 328, 93 Cal.Rptr.3d 559, 207 P.3d 20; see also Greenwood, 2010 WL 4807095, at * 5 (“[I] n UCL claims for false advertising, a material misrepresentation results in a presumption, or at least an inference, of individualized reliance”). While Defendants object that Plaintiff has not specifically alleged that he was “exposed” to an advertising campaign as in In re Tobacco Cases II, his allegation at 116 of the FAC, at least under normal pleading standards, does assert such exposure. Whether the Plaintiff can represent class members who have relied on different advertisements then those on which the plaintiff himself relied is, for the reasons explained supra, an issue for the class certification stage. B. Nationwide Class Allegations Plaintiff is a California citizen seeking to recover under California’s consumer protection laws, but he seeks to represent a class action on behalf of citizens of other states. Defendants ask the Court to strike Plaintiffs nationwide class allegation, citing Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (9th Cir.2012), for the proposition that California’s consumer protection laws cannot be applied nationwide. In essence, Defendants argue that Mazza stands for the proposition that California’s consumer protection laws materially differ from the laws of all other states in all cases. This overreads Mazza. Mazza did not establish “such a bright-line rule,” but rather contained a detailed choice-of-law analysis which determined that “in that case California law should not be applied to non-California residents.” Won Kyung Hwang v. Ohso Clean, Inc., C-12-06355 JCS, 2013 WL 1632697, at * 21 (N.D.Cal. Apr. 16, 2013) (emphasis in original). “Mazza did not purport to hold that nationwide classes are, as a matter of law, uncertifiable under California’s consumer protection laws.” Forcellati v. Hyland’s Inc., 876 F.Supp.2d 1155, 1159 (C.D.Cal.2012)." }, { "docid": "8499531", "title": "", "text": "The plaintiffs in Mazza brought a nationwide class action against Honda, alleging violations of California’s consumer protection laws related to Honda’s advertising of its collision mitigation braking system. 666 F.3d at 587. The district court certified a nationwide class, but on appeal the Ninth Circuit reversed. That court engaged in a detailed analysis of California’s choice-of-law rules and found that the differences between the consumer protection laws of California and those of other states in which class members bought cars could materially affect the outcome of that litigation. The court specifically noted that “Honda [had] exhaustively detailed the ways in which California law differs” in its briefing. Id. at 591. Such a detailed choice-of-law analysis is not appropriate at this stage of the litigation. Rather, such a fact-heavy inquiry should occur during the class certification stage, after discovery. See Donohue v. Apple, Inc., 871 F.Supp.2d 913, 922 (N.D.Cal.2012); see also In re Clorox Consumer Litigation, 894 F.Supp.2d 1224, 1237 (N.D.Cal.2012) (“Since the parties have yet to develop a factual record, it is unclear whether applying different state consumer protection statutes could have a material impact on the viability of Plaintiffs claims”). Mazza, of course, will be relevant to the decision whether to certify any proposed class or sub-class. But at this early stage of the litigation, “it would be premature to speculate about whether the difference in various states’ consumer protection laws are material in this case.” Forcella-ti, 876 F.Supp.2d at 1159. C. Preemption Defendants challenge Clancy’s claims as preempted, for two reasons. First, they argue that the FDCA prohibits Plaintiff from invoking the Sherman Law’s private right of action. Second, they argue that Plaintiff is seeking to impose substantive requirements greater than those required under the FDCA and FDA regulations. 1. Preemption of the Sherman Law’s Private Right of Action Bromley argues that all of Plaintiffs claims are preempted because they are based on alleged regulatory violations of the FDCA. There is no private right of action to enforce the FDCA or regulations promulgated by the FDA, and even though plaintiffs state law claims allege a violation of California’s" }, { "docid": "19577518", "title": "", "text": "*5. Defendant cites Wilcox and four other district court cases in which the courts granted motions to strike or dismiss class allegations before certification, on grounds similar to Wilcox and unrelated to jurisdictional concerns. See In re St. Jude Med. Inc. Silzone Heart Valves Prod. Liab. Litig., MDL No. 01-1396 (JRT/FLN), 2009 WL 1789376, at *5 (D. Minn. June 23, 2009) (finding, on third motion for class certification, that evidence was insufficient to support certification under Eighth Circuit precedent, thus motion to strike was granted); In re Old Kent Mortg. Co. Yield Spread Premium Litig., 191 F.R.D. 155, 164 (D. Minn. 2000) (deciding, prior to ruling on plaintiff's motion for voluntary dismissal, to strike class allegations because the predominance requirement could not be met as a matter of law based on HUD regulation requiring individual determination of rate-setting claims); Nevada-Martinez v. Ahmad , No. 5:15-cv-239-JMH, 2016 WL 7888046, at *3 (E.D. Ky. June, 17, 2016) (granting motion to strike because the court could \"fathom no potential factual developments which would offer hope of altering its conclusion\" that the proposed class was a fail-safe class); Hall v. Equity Nat'l Life Ins. Co. , 730 F.Supp.2d 936, 941-42 (E.D. Ark. 2010) (granting motion to strike because the suit was barred by res judicata from nationwide settlement in state court). District courts in other circuits have increasingly declined to address this particular issue at the pleading stage. See Gonzalez v. Costco Wholesale Corp. , No. 16-CV-2590 (NGG) (JO), 2018 WL 4783962, at *8 (E.D.N.Y. Sept. 29, 2018) (\"[T]his court will defer its resolution of this issue until Plaintiff files a motion for class certification.\"); Gasser v. Kiss My Face, LLC , No. 17-CV-1675-JSC, 2018 WL 4538729, at * 2 (N.D. Cal. Sept. 21, 2018) (\"[A]t this stage of the litigation, where Defendant has brought three motions to dismiss and a motion for judgment on the pleadings, the issue of whether Plaintiffs can and/or should represent consumers outside of New York and California is an issue to be raised at class certification.\"); Campbell v. Freshbev LLC , 322 F.Supp.3d 330, 337 (E.D.N.Y. 2018) (\"Given" }, { "docid": "19306612", "title": "", "text": "action, standing is satisfied if at least one named plaintiff meets the requirements.... Thus, we consider only whether at least one named plaintiff satisfies the standing requirements.”). The next significant case is Mazza v. American Honda Motor Co., Inc., 666 F.3d 581 (9th Cir.2012), which involved representations Honda made about an advanced braking system in Acura RL cars. The district court certified a nationwide class of consumers who bought RLs equipped with the braking system, and the Ninth Circuit vacated its order. Like Ticketmaster in Steams, Honda argued that if class members didn’t need to actually rely on the representations at issue and suffer some injury, the class lacked Article III standing. But rather than say, as it did in Steams, that only the standing of the named plaintiff matters, it cited a Second Circuit case for the opposite proposition that “[N]o class may be certified that contains members lacking Article III standing.” Id. at 594 (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir.2006)). It also immediately cited Bates and Steams, which ostensibly contradict Denney. But perhaps little turned on this in the end, because the court then said, directly in line with Steams, that it was enough “that class members paid more for the CMBS than they otherwise would have paid, or bought it when they otherwise would not have done so, because Honda made deceptive claims.” Id. at 595. No more particularized proof of injury or causation was required. Considering Steams and Mazza alone, the relevance of Article III standing considerations to the class certification analysis may seem overblown. True, Steams says absent class members don’t need standing and Mazza says they do, but Mazza cites Steams (and another ease in line with it), and seems to set a rather low bar for standing anyway. Simply spending money on something that doesn’t do what it claims to do is all the injury absent class members need. The issue becomes more confusing in light of a number of conflicting district court opinions, some issued before Steams, some issued after Steams and before Mazza, and some" }, { "docid": "16420297", "title": "", "text": "(citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). He.concluded, correctly in my judgment, that.district courts “ha[ve] the discretion to defer questions of standing until after class certification,” but. may nonetheless “opt[], as a matter of case management,” to address standing in advance of class' certification. In re Carrier IQ, Inc., 78 F.Supp.3d at 1074. I join the several other judges in this circuit who have addressed the question and opt here to require that plaintiffs present named class representatives who possess individual standing to assert each state law’s claims against Nissan. See In re Carrier IQ, Inc., 78 F.Supp.3d at 1075 (finding that named plaintiffs did not have standing to assert claims from states in which they did not reside or make a relevant purchase); Mollicone v. Universal Handicraft, Inc., No. 2:16-cv-07322, 2017 WL 440257, at *9-10 (C.D. Cal. Jan. 30, 2017) (dismissing claims based .on laws of states other than those represented by named plaintiffs); Morales v. Unilever U.S., Inc., No. 2:13-2213, 2014 WL 1389613, at *6 (E.p. Cal. Apr. 9, 2014) (same). In this case, plaintiffs have two named class representatives in two states purporting to represents nationwide class, creating the significant burden of nationwide discovery. See In re Carrier IQ, Inc., 78 F.Supp.3d at 1074 (“The Court has reservations of subjecting the [defendant] to the expense and burden of nationwide discovery without Plaintiffs first securing actual plaintiffs who clearly, have standing and are willing and able to assert claims under these state laws.”); see also in re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 155 (E.D. Pa. 2009) (adjudicating class-oriented standing questions at the pleading stage, explaining that it declined to “indulge in the prolonged and expensive implications of the plaintiffs’ position only to be faced with the same problem months down the road”). For these reasons, I agree with Nissan that named plaintiffs do not have standing to maintain a nationwide class action. Given that plaintiffs have expressed a willingness to identify additional named" }, { "docid": "16420298", "title": "", "text": "by named plaintiffs); Morales v. Unilever U.S., Inc., No. 2:13-2213, 2014 WL 1389613, at *6 (E.p. Cal. Apr. 9, 2014) (same). In this case, plaintiffs have two named class representatives in two states purporting to represents nationwide class, creating the significant burden of nationwide discovery. See In re Carrier IQ, Inc., 78 F.Supp.3d at 1074 (“The Court has reservations of subjecting the [defendant] to the expense and burden of nationwide discovery without Plaintiffs first securing actual plaintiffs who clearly, have standing and are willing and able to assert claims under these state laws.”); see also in re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 155 (E.D. Pa. 2009) (adjudicating class-oriented standing questions at the pleading stage, explaining that it declined to “indulge in the prolonged and expensive implications of the plaintiffs’ position only to be faced with the same problem months down the road”). For these reasons, I agree with Nissan that named plaintiffs do not have standing to maintain a nationwide class action. Given that plaintiffs have expressed a willingness to identify additional named plaintiffs to adequately represent class members in other states (they allege that the NHTSA complaints include consumers in 34 separate states), I grant them leave to do so and to amend the pleadings accordingly. II. Whether Plaintiffs Sufficiently Allege a Claim for Express Warranty The next issue is whether plaintiffs have sufficiently pled a claim for express warranty generally, as well as with respect to named plaintiff Subrina Seenarain. Nissan argues that plaintiffs’ express warranty claims must be dismissed because its express warranty does not cover design defects. Plaintiffs claim that it does,' but also contend that they allege both manufacturing and design defects. Nissan also contends that Ms. Seenarain’s claim must be dismissed for the independent reason that she has not sufficiently alleged that her vehicle is covéred by Nissan’s warranty. I will first address the scope of the express warranty, then address the sufficiency of plaintiffs’ allegations. A. Whether Nissan’s Express Warranty Covers Design Defects Nissan contends that its express warranty, which covers “any repairs needed to correct defects in materials or workmanship,”" }, { "docid": "8501376", "title": "", "text": "residents. The 50 states’ variations in degrees of protection, requirements for consent, and available remedies reflect the states’ “valid interest in shielding out-of-state businesses from what the state may consider to be excessive litigation,” because “[i]n our federal system, states may permissibly differ on the extent to which they will tolerate a degree of lessened protection for consumers to create a more favorable business climate for the companies that the state seeks to attract to do business in the state.” Mazza, 666 F.3d at 592-93. The individual states also have valid interests in balancing the privacy interests of their residents with free speech considerations. Cf. People v. Clark, 6 N.E.3d 154, 379 Ill.Dec. 77 (2014) (balancing “governmental interest” in “protecting individuals from the surreptitious monitoring of their conversations,” with First Amendment free speech considerations). Plaintiffs further argue that “class members’ home states do not have an interest in depriving their residents of greater privacy protections available” under California law. See Mot. at 20. However, the choice-of-law analysis does not permit the Court to weigh the conflicting state interests to determine which conflicting state law manifests the “better” or “worthier” social policy. Mazza, 666 F.3d at 593-94 (citing McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 97, 105 Cal.Rptr,3d 378, 225 P.3d 516 (2010)). The Court may not second guess the decisions of other states that choose to strike a different balance in deciding how to best protect the privacy rights of their residents while balancing the desire to attract businesses that provide valuable services to their residents. See Gianino, 846 F.Supp.2d at 1103 (“[T]he Court must recognize the importance of federalism and every state’s right to protect its consumers and promote those businesses within its borders.”). In sum, the Court concludes that for non-California class members, other states’ interests would be more impaired by applying California law than would California’s interests by applying other states’ laws. Certification of the nationwide class under California law therefore would be improper. Each nonresident class member’s state law claims should be governed by and decided under the wiretapping laws of the state in which" }, { "docid": "2201035", "title": "", "text": "185 L.Ed.2d 308 (2013) (“[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap with the merits of the plaintiffs underlying claim.’ ” (quoting Wal-Mart Stores, Inc. v. Dukes, — U.S. —, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)); see also Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir.2012) (“Before certifying a class, the trial court must conduct a rigorous analysis to determine whether the party seeking certification has met the prerequisites of Rule 23.” (internal quotation marks omitted)). Courts that have stricken class allegations at the pleading stage have recognized that the “granting of motions to strike class allegations before discovery and in advance of a motion for class certification is rare” and have only done so in rare occasions where the class definition is obviously defective in some way. Lyons v. Bank of Am., NA, No. 11-1232, 2011 WL 6303390, at *7 (N.D.Cal. Dec. 16, 2011). In fact, in none of the cases Defendant cites have class allegations been struck for a deficiency with respect to predominance. Rather, in these cases, courts have generally struck class allegations (with leave to amend) on the basis that the class definitions were overbroad, and therefore, the classes were not ascertainable. See id. (noting that “the proposed class includes many members who have not been injured”); Tietsworth v. Sears, 720 F.Supp.2d 1123, 1146 (N.D.Cal.2010) (striking class allegations where the proposed class included individuals who had no problems with the purportedly defective product); Sanders v. Apple, Inc., 672 F.Supp.2d 978, 991 (N.D.Cal.2009) (striking class allegations because the proposed class definition “necessarily includes individuals who did not purchase” the accused product). Therefore, the Court will not strike Plaintiffs’ class allegations based on a lack of predominance at the pleading stage. See Vínole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir.2009) (“Our cases stand for the unremarkable proposition that often the pleadings alone will not resolve the question of class certification and that some discovery will be warranted.”). VI. CONCLUSION For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Linkedln’s" } ]

[ { "docid": "3093446", "title": "", "text": "DUNIWAY, Circuit Judge. In these two cases we ordered hearings en banc to consider whether we should continue to follow our decision in Sauer v. United States, 1957, 9 Cir., 241 F.2d 640, cert. denied, 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539. There, we adhered to the so-called M’Naghten rule, as extended by the so-called irresistible impulse theory, as the test of determining whether a defendant in a criminal case can be found to have been insane when he committed the criminal act, and therefore not guilty. We adhered to Sauer in Smith v. United States, 1965, 9 Cir., 342 F.2d 725 and in Kilpatrick v. United States, 1967, 9 Cir., 372 F.2d 93, cert. denied, 387 U.S. 922, 87 S.Ct. 2040, 18 L.Ed.2d 979. See also Maxwell v. United States, 9 Cir., 1966, 368 F.2d 735, 740-742. For reasons that will appear, we have concluded that these are not appropriate cases in which to reconsider the views that we expressed in Sauer, just as the panel that decided Maxwell felt that it was not an appropriate vehicle for such reconsideration. 1. The facts in Ramer’s appeal. Ramer was convicted on two counts charging bank robbery in violation of 18 U.S.C. § 2113(a). He was tried by the court, sitting without a jury. He entered the Sunset-Echo Park Branch of the Bank of America, in Los Angeles, on November 11, 1964, approached a teller, and said “Give me all the money you have got from hundred dollar bills down.” The teller said “Pardon me,” and Ramer replied “You heard me. Give me all the money you have got.” When the teller started to get down from the stool where she sat, he said “Don’t step on it,” meaning the alarm. Next, he put his hand in his pocket and raised it over the counter, saying “I am not kidding.” The teller gave him some dollar bills and he said “No, not that, the 20’s.” The teller gave him a batch of 20 dollar bills, including decoy money. He appeared to have been drinking, and seemed quite nervous. He" } ]

[ { "docid": "11822135", "title": "", "text": "same argument on motion for judgment of acquittal. This was done, and the motion denied. Appellant’s counsel first attacks the lawfulness of the arrest. Standing alone, this is not a ground for reversal. Frisbie v. Collins, 1952, 342 U. S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Tyman v. Eyman, 9 Cir., 1967, 371 F.2d 764; Lofland v. United States, 9 Cir., 1966, 357 F.2d 472, cert. denied 1967, 385 U.S. 1026, 87 S.Ct. 755, 17 L.Ed.2d 675. It can become material here only if the arrest produced evidence used at the trial, or used to obtain other evidence used at the trial, and did so in an unconstitutional manner. Clearly, there was no arrest until after Keegan produced the credit card, exhibit lc, at the parking lot. Nor was there then a search of the car. What was said at the pool, and the production of the credit card, were voluntary, in connection with a legitimate inquiry conducted by the hotel manager. It is therefore not surprising that trial counsel did not object. We will assume without deciding that Keegan was arrested at the parking lot after Leone identified himself and warned him as to his rights. Trial counsel made no such claim at trial or in his subsequent motion. By the time he made the motion, he had Leone’s arrest report (Ex. A), which showed that the information Leone had might well have justified the arrest as soon as Keegan produced the Barilla credit card as identification. It is no wonder that trial counsel did not raise the question. Appellate counsel next attacks the sufficiency of Leone’s warning, criticizing it because instead of telling Keegan that he did not have to talk at all, he said “You don’t have to say anything without the presence of an attorney.” No doubt the warning could have been better phrased, but it did tell Keegan, “in clear and unequivocal terms that he ha[d] the right to remain silent” at the time. (Miranda v. State of Arizona, 1966, 384 U.S. 436, 467-468, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694.) And Keegan’s response" }, { "docid": "11676251", "title": "", "text": "available. See Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973). Once the prisoner has been returned to the demanding state, the writ of habeas corpus is no longer available to challenge his confinement upon grounds arising from conduct in the asylum state. Mahon v. Justice, 127 U.S. 700,. 706-08, 8 S.Ct. 1204, 1207-08, 32 L.Ed. 283 (1888). Nor may the prisoner attack the validity of his conviction in the demanding state on the basis of improper extradition. Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886). But cf. United States v. Toscanino, 500 F.2d 267, 271-79 (2d Cir. 1974) (supervisory power of federal courts and due process might require a federal court to divest itself of jurisdiction of prisoner forcibly kidnapped from foreign country in violation of extradition treaty). If the prisoner in the demanding state is not allowed to bring a section 1983 civil suit, he will be effectively foreclosed from any method of enforcing the extradition safeguards recognized by the availability of the writ of habeas corpus in the asylum state. The safeguards provided by the extradition clause and statute, enforceable through the writ of habeas corpus, are equally applicable to a section 1983 action. Both habeas corpus and section 1983 “serve to protect basic constitutional rights. * * It is futile to contend that the Civil Rights Act of 1871 has less importance in our constitutional scheme than does the Great Writ.” Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974). Section 1983 provides an effective deterrent to illegal police conduct. It presents a viable alternative to complete exclusion from trial of illegally seized property and persons. See California v. Minjares, 443 U.S. 916, 925-928, 100 S.Ct. 9, 14-15, 61 L.Ed.2d 892, 896 (1979) (Rehnquist, J., dissenting from denial of stay). Furthermore, we have held that a section 1983 damage action is an alternative remedy when the writ of habeas corpus is unavailable," }, { "docid": "23094301", "title": "", "text": "that the United States affirmatively agreed not to seize foreign nationals from the territory of its treaty partner. Noriega has not carried this burden, and therefore, his claim fails. 3. In his pre-trial motion, Noriega also sought the dismissal of the indictment against him on the ground that the manner in which he was brought before the district court (i.e., through a military invasion) was so unconscionable as to constitute a violation of substantive due process. Noriega also argued that to the extent the government’s actions did not shock the judicial conscience sufficiently to trigger due process sanctions, the district court should exercise its supervisory power to decline jurisdiction. The district court rejected Noriega’s due process argument, and it declared Noriega’s alternative supervisory power rationale non-justieia-ble. On appeal, Noriega offers no substantive argument regarding the due process prong of this claim, but rather discusses only his alternative supervisory power theory. Because, however, the due process and supervisory power issues are intertwined, we discuss them both. Noriega’s due process claim “falls squarely within the [Supreme Court’s] Ker-Frisbie doctrine, which holds that a defendant cannot defeat personal jurisdiction by asserting the illegality of the procurement of his presence.” United States v. Darby, 744 F.2d 1508, 1530 (11th Cir.1984) (denying due process challenge based on government’s extraterritorial seizure of defendant), cert. denied sub nom., Yamanis v. United States, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985). See Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952) (“This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886), that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’”). Noriega has not alleged that the government mistreated him personally, and thus, he cannot come within the purview of the caveat to Ker-Frisbie recognized by the Second Circuit in United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), were this court" }, { "docid": "18444832", "title": "", "text": "ex rel. Tucker v. Donovan, 321 F.2d 114, 116 (2d Cir. 1963); United States ex rel. Proctor v. New York, 229 F.Supp. 696, 698 (S.D.N.Y.1964). Appellant fares no better in the federal courts, however, for they would also reject his extradition claims. See Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Hunt v. Eyman, 405 F.2d 384 (9th Cir. 1968); United States ex rel. Huntt v. Russell, 285 F.Supp. 765, 767 (E.D.Pa.1968), aff'd per curiam, 406 F.2d 774 (3d Cir. 1969); United States ex rel. Owens v. Russell, 260 F.Supp. 638 (M.D.Pa.1966); United States ex rel. Kelly v. Fullam, supra. The basis for denying relief when confinement stems from conviction following an allegedly illegal extradition is the rule that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ * * *” Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952). In that landmark case the Court stated the reason for the rule as follows: * * * [D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will. 342 U.S. at 522, 72 S.Ct. at 512. The rationale of the Frisbie case is reinforced here by the fact that appellant has twice pleaded guilty to the offense for which he was extradited. See United States ex rel. Owens v. Russell, supra. Even if the district court is correct and appellant did have state remedies which he failed to pursue, we have previously held that the federal habeas corpus statute “permits denial of a petition for the Great Writ on its merits, though state remedies may not be exhausted.” (Emphasis added.) United" }, { "docid": "1430951", "title": "", "text": "apparently argues that the arrest was without probable cause. Under the posture of the case, we find these claims frivolous. Although we find no constitutional or other infirmity in the Huckabee affidavit or in the process which brought defendant before the district court, we need not discuss these claims. It is well established that irregularities in the manner in which a defendant is brought into custody does not deprive the court of personal jurisdiction over the defendant in a criminal case. United States v. Peltier, 585 F.2d 314, 335 (8th Cir. 1978); United States v. Turner, 442 F.2d 1146, 1148 (8th Cir. 1971); Collins v. Swenson, 443 F.2d 329, 331 (8th Cir. 1971). See also Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952), reh’g denied, 343 U.S. 937, 72 S.Ct. 768, 96 L.Ed. 1344 (1952); Ker v. Illinois, 119 U.S. 436, 440, 7 S.Ct. 225, 227, 30 L.Ed. 421 (1886). No claim is asserted that any evidence was inadmissible due to the alleged unauthorized arrest. Thus, there is no relevant merit to defendant’s claim. C. Speedy Trial Rights. The defendant’s remaining contentions merit little discussion. Although his trial 112 days after his first appearance before a judicial officer appears to have violated the Speedy Trial Act of 1974, 18 U.S.C. § 3161(c)(1), the appearance of a violation is answered by periods of “excludable time.” See 18 U.S.C. §§ 3161(h)(1)(F) and 3161(h)(8)(A). Defendant argues that pretrial motions do not give rise to excludable periods under section 3161(h)(1)(F) unless delay of the trial is actually caused by filing of the mo tions. We have previously considered and rejected this argument in view of the legislative history of the Speedy Trial Act and 1979 amendments thereto. See United States v. Brim, 630 F.2d 1307, 1312-13 (8th Cir. 1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981). D. Selective Prosecution; Multiple Offenses. Stuart next alleges that the district court erred in denying an evidentiary hearing on his allegation of selective prosecution. Defendant, however, was given an opportunity to amend his motion to dismiss" }, { "docid": "19170262", "title": "", "text": "Khalfan Mohamed was released into their custody, it was reasonable for American agents to rely on the South African officials’ interpretation of South African law. See United States v. Lira, 515 F.2d 68, 71-72 (2d Cir.1975) (“[I]n dealing with a foreign government, the [American] agents were entitled to rely on that government’s interpretation and enforcement of its own laws.”). At the time, there was no objection voiced by the South African government to Mohamed’s rendition to the United States. Cf. Davis v. Muellar, 643 F.2d 521, 526 (8th Cir.1981) (explaining that the court may have reacted differently to a prompt objection to extradition than it did to a delayed, post-surrender claim). For these reasons, it is the Court’s belief that the American officials involved in Mohamed’s arrest and extradition acted in good faith. Ultimately, though, regardless of the motives of American officials or the degree of their involvement in orchestrating his arrest and removal from South Africa, the remedy Khalfan Mohamed seeks under these circumstances would be unwarranted. Both the Defendant and the Government point out (see KKM Mot. at 7; Gov’t Resp. at 1) that, as a general rule, the manner by which a defendant is brought before a court does not affect that court’s proper assertion of jurisdiction in criminal eases.’ See Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952) (“[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.”). In United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), the Supreme Court considered the case of a defendant whose kidnaping from Mexico was overseen by American DEA officials. In addition to noting that there was no express" }, { "docid": "19170263", "title": "", "text": "out (see KKM Mot. at 7; Gov’t Resp. at 1) that, as a general rule, the manner by which a defendant is brought before a court does not affect that court’s proper assertion of jurisdiction in criminal eases.’ See Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952) (“[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.”). In United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992), the Supreme Court considered the case of a defendant whose kidnaping from Mexico was overseen by American DEA officials. In addition to noting that there was no express prohibition on forcible abductions in the United States’ extradition treaty with Mexico, the Alvarez-Machain Court highlighted that there was no provision in the treaty that formal extradition was the sole means of transferring or acquiring custody of a suspected criminal. Id. at 664-66, 112 S.Ct. 2188. The same is true of the bilateral treaty governing extraditions between South Africa and the United States at the time of Khalfan Mohamed’s arrest and removal. Treaty of Extradition, December 18, 1947, U.S.-S. Afr., 2 U.S.T. 884. There is no provision in the treaty that expressly prohibits the procedures followed in this case and no statement that the procedures outlined in the treaty were the sole means of transferring custody of a suspected criminal. Id. In the absence of a treaty violation, the Ker/Fñsbie doctrine controls and Mohamed is not entitled to the relief he seeks. See Alvarez-Machain, 504 U.S. at 669-70, 112 S.Ct. 2188. The Second Circuit case most often cited as the exception to the Ker/Fñsbie and Alvarez-Machain line of decisions, United States v. Toscanino, 500 F.2d" }, { "docid": "3555892", "title": "", "text": "We therefore decline to order a new trial. III. Appellant raises several other less substantial claims of error, which we reject. A. Initially, Wilson contends that the District Court’s jurisdiction over his person was improperly acquired by fraud on the part of the government. The essential facts pertaining to this issue are not in dispute. Following his April 1980 indictment in the District of Columbia for unlicensed export of explosives and conspiracy to solicit murder, Wilson remained a fugitive from justice until 1982, when Ernest Reiser, an acquaintance who was working for the government, persuaded him to leave his refuge in Libya for the Dominican Republic. Reiser pretended to be representing the National Security Council, which purportedly wanted to consult with Wilson, and he offered assurances that Wilson would be safe in the Dominican Republic. Wilson voluntarily left Libya, and was denied entry by Dominican officials at the Dominican airport; he was then taken into custody by United States agents and put on a plane bound for New York City. Wilson was arrested at the John F. Rennedy International Airport on June 15, 1982. It has long been the general rule that a court’s power to try a criminal defendant is not impaired by the government’s use of even forcible abduction to bring the defendant within the court’s jurisdiction. Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886). The Second Circuit, in United States v. Toscanino, 500 F.2d 267 (1974), found a due process exception to the Ker-Frisbie doctrine where the government had secured control over the defendant by reprehensible methods including torture, and acted in violation of a treaty with the nation where the defendant was apprehended. Wilson’s reliance on Toscanino, however, is misplaced. For even if we were to adopt Toscanino’s holding, its facts are clearly distinguishable. Here there is no evidence of “conduct that shocks the conscience,” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), nor has the appellant" }, { "docid": "18752305", "title": "", "text": "420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511-12, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886); United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975); United States v. Winter, 509 F.2d 975, 985-86 (5th Cir.), cert. denied sub nom. Parks v. United States, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975); Voigt v. Toombs, 67 F.2d 744 (5th Cir.1933), cert. dismissed, 291 U.S. 686, 54 S.Ct. 442, 78 L.Ed. 1072 (1934).... These precedents rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will. Frisbie v. Collins, 342 U.S. at 522, 72 S.Ct. at 512. United States v. Postal, 589 F.2d 862, 873-74 (5th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979) (footnotes omitted). The present appeal presents a clear case of individual citizens acting outside the parameters of a treaty. As noted earlier, the two applications for extradition filed in Jaffe’s case were both rejected as to form by the Attorney General of Florida and no further attempts were made to comply with the requirements of the Treaty. The bondsmen did not purport to act pursuant to the Treaty when they apprehended Jaffe, they carried no papers pertaining to his extradition nor did they approach any Canadian official concerning his extradition. Jaffe’s removal from Canada can constitute a treaty violation only if governmental actors were involved, that is if the government conducted or condoned his removal by means other than those outlined in the Treaty. In an attempt to prove this necessary “state" }, { "docid": "8072240", "title": "", "text": "to try a defendant is ordinarily not affected by the manner in which the defendant is brought to trial. See Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952) (upholding conviction of defendant who had been kidnapped in Chicago by Michigan officers and brought to trial in Michigan); Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886) (holding that court’s power to try defendant for crime was not impaired by forcible abduction of defendant from Peru); see also United States v. Romero-Galue, 757 F.2d 1147, 1151 n. 10 (11th Cir.1985) (noting that “[jjurisdiction over the person of a defendant ‘in a federal criminal trial whether citizen or alien, whether arrested within or beyond the territory of the United States,’ is not subject to challenge on the ground that the defendant’s presence before the court was unlawfully secured”) (quoting United States v. Winter, 509 F.2d 975, 985-86 (5th Cir.1975)). This general rule, commonly referred to as the Ker-Frisbie doctrine, “rest[s] on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fail trial in accordance with constitutional procedural safeguards.” Frisbie, 342 U.S. at 522, 72 S.Ct. 509. The Supreme Court explained in Frisbie that “[tjhere is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.” Id. In the years following Frisbie, however, it appeared in creasingly difficult to reconcile the strict application of its rule with the expanded interpretation of due process expressed by the Court in later cases such as Mapp v. Ohio, 367 U.S. 643, 646, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in which the Court held that due process requires application of the exclusionary rule in state prosecutions. In 1970, nearly two decades after Frisbie had been decided, we observed that the doctrine’s validity “has been seriously questioned because it condones illegal police conduct.” Gov’t of Virgin" }, { "docid": "3555893", "title": "", "text": "John F. Rennedy International Airport on June 15, 1982. It has long been the general rule that a court’s power to try a criminal defendant is not impaired by the government’s use of even forcible abduction to bring the defendant within the court’s jurisdiction. Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886). The Second Circuit, in United States v. Toscanino, 500 F.2d 267 (1974), found a due process exception to the Ker-Frisbie doctrine where the government had secured control over the defendant by reprehensible methods including torture, and acted in violation of a treaty with the nation where the defendant was apprehended. Wilson’s reliance on Toscanino, however, is misplaced. For even if we were to adopt Toscanino’s holding, its facts are clearly distinguishable. Here there is no evidence of “conduct that shocks the conscience,” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), nor has the appellant asserted any United States infringement of Dominican sovereignty; to the contrary, Dominican officials appear to have cooperated in Wilson’s capture. Wilson has simply been the victim of a nonviolent government trick, and as the Second Circuit has made clear, see United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65, cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975), any irregularity in a criminal defendant’s apprehension will not vitiate proceedings against him. B. The trial judge chose not to grant a continuance requested by defendant to allow a previously subpoenaed defense witness, General Anderson, to testify. Wilson presents this decision as a denial of his due process and compulsory process rights. Even assuming that General Anderson would have testified, as appellant claims, that the M-16 rifle at issue in this case had been inoperable while he owned it several years before, we do not believe that reversal of appellant’s convictions related to that firearm is warranted. The granting of a continuance lies within the discretion of the trial judge, and whether" }, { "docid": "14344160", "title": "", "text": "law and offended “the canons of decency and fairness which American notions of justice hold dear.” Brief of Defendant-Appellant 23. He asks that we hold that the district court erred in not dismissing his case on the basis of illegal removal and reverse his conviction. We decline to do so. Although Mitchell’s brief is murky on this point, he seems to contend that the manner in which the United States brought him to trial violated his due process rights and thus requires that his prosecution be abated. The manner in which Mitchell was brought to trial, however, does not affect the ability of the government to try him. The Supreme Court has upheld this proposition for over 100 years, refusing to apply an exclusionary rule to the body of the defendant. See Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952) and Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) (collectively, the “Ker-Frisbie doctrine”); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40, 104 S.Ct. 3479, 3483-84, 82 L.Ed.2d 778 (1984); Matta-Ballesteros v. Henman, 896 F.2d 255, 260-61 (7th Cir.), cert. denied, — U.S. -, 111 S.Ct. 209, 112 L.Ed.2d 169 (1990). Although the Second Circuit recognized an “outrageous conduct” or “shock-the-conscience” exception to the Ker-Frisbie doctrine in United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), we have declined to follow the exclusionary rule grounds of Toscanino and have questioned its continuing constitutional vitality. Matta-Ballesteros, 896 F.2d at 262-63. The district court properly refused to apply an exception to the Ker-Frisbie doctrine in Mitchell’s case, especially in light of Mitchell’s own statement that he “is not claiming that the United States Government or its agents subjected him to physical torture or even abduction.” Brief of Defendant-Appellant 23. Therefore, we affirm the district court’s denial of Mitchell’s motion to dismiss to the extent that it sought an exception to the longstanding Ker-Frisbie doctrine. Furthermore, to the extent that Mitchell alleges that his due process rights have been violated by this pretrial detention and conditions thereof, his argument is again unpersuasive. The" }, { "docid": "1253790", "title": "", "text": "Amendment right to due process of law. The Court further held that since the treaty of extradition between the United States and Peru did not confer a right to asylum on the defendant, he could not object to the fact that the state of Illinois had acquired custody over him through self-help rather than legal process. Eleven years later in Ex Parte Johnson, 1897, 167 U.S. 120, 17 S.Ct. 735, 42 L.Ed. 103, the Court clearly indicated that the Ker doctrine was equally applicable to defendants in federal criminal proceedings. . In Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, the Supreme Court reconsidered and unanimously reaffirmed the continuing viability of the Ker doctrine. Rejecting the claim that abduction and transfer of the defendant was itself a federal kidnapping, the Court, through Mr. Justice Black, declared: This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a “forcible abduction.”7 No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will. 342 U.S. at 522, 72 S.Ct. at 511. . In our recent case of United States v. Vicars, 5 Cir., 1972, 467 F.2d 452, we stated this summary of the law. Even if, as Gonzales claims, he was illegally arrested in the Panama Canal Zone and brought to the United States, this is not grounds for requiring that the trial court release and discharge him without trial." }, { "docid": "18752304", "title": "", "text": "Julian, in seizing upon the person of Ker and carrying him out of the territory of Peru into the United States, did not act nor profess to act under the treaty. In fact, that treaty was not called into operation, was not relied upon, was not made the pretext of arrest, and the facts show that it was a clear case of kidnapping within the dominions of Peru, without any pretense of authority under the treaty or from the Government of the United States. Id. at 442-43, 7 S.Ct. at 228-29, 30 L.Ed. at 424. Unless a defendant can prove that she or he was removed from the asylum state by governmental action, and therefore establish a treaty violation, she or he may not object to trial in the United States. In essence the law is not concerned with the manner in which a criminal defendant finds her or his way into the court. A defendant may not ordinarily assert the illegality of his obtention to defeat the court’s jurisdiction over him. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511-12, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886); United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975); United States v. Winter, 509 F.2d 975, 985-86 (5th Cir.), cert. denied sub nom. Parks v. United States, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975); Voigt v. Toombs, 67 F.2d 744 (5th Cir.1933), cert. dismissed, 291 U.S. 686, 54 S.Ct. 442, 78 L.Ed. 1072 (1934).... These precedents rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape" }, { "docid": "23094302", "title": "", "text": "Ker-Frisbie doctrine, which holds that a defendant cannot defeat personal jurisdiction by asserting the illegality of the procurement of his presence.” United States v. Darby, 744 F.2d 1508, 1530 (11th Cir.1984) (denying due process challenge based on government’s extraterritorial seizure of defendant), cert. denied sub nom., Yamanis v. United States, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985). See Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952) (“This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886), that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’”). Noriega has not alleged that the government mistreated him personally, and thus, he cannot come within the purview of the caveat to Ker-Frisbie recognized by the Second Circuit in United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), were this court inclined to adopt such an exception. See Darby, 744 F.2d at 1531 (questioning viability of Toscanino exception and refusing to apply it absent allegations that defendant endured “cruel, inhuman and outrageous treatment”). Further, whatever harm Panamanian civilians suffered during the armed conflict that preceded Noriega’s arrest cannot support a due process claim in this case. See United States v. Payner, 447 U.S. 727, 737 n. 9, 100 S.Ct. 2439, 2447, n. 9, 65 L.Ed.2d 468 (1980) (holding that even where government’s conduct toward third parties “was so outrageous as to offend fundamental canons of decency and fairness, the fact remains that [t]he limitations of the Due Process Clause ... come into play only when the Government activity in question violates some protected right of the defendant ” (internal quotations omitted)). Noriega’s attempt to evade the implications of the Ker-Frisbie doctrine by appealing to the judiciary’s supervisory power is equally unavailing. Although, “in the exercise of supervisory powers, federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress,” United" }, { "docid": "18444831", "title": "", "text": "available remedies in the Pennsylvania state courts. We agree. The state cases do not afford relief from allegedly illegal proceedings in the asylum state prior to extradition to Pennsylvania. Dow’s Case, 18 Pa. 37 (1851); Commonwealth ex rel. Howard v. Claudy, 172 Pa.Super. 574, 93 A.2d 906, 908 (1953). See also United States ex rel. Kelly v. Fullam, 224 F.Supp. 492, 494 (E.D.Pa.1963). Thus where it is clear that state law affords no remedy for a claimed assertion of violation of constitutional rights, state remedies may be considered exhausted under 28 U.S.C. § 2254. A frequent example occurs in extradition proceedings where a fugitive asserts in the asylum state a claim of violation of constitutional rights in the demanding state, the reverse of the situation here. The basis for finding exhaustion in such cases stems from the realization that to require resort to the state courts when settled state law precludes examination into the circumstances of the claim would serve no purpose. See Whippler v. Balkcom, 342 F.2d 388, 392 (5th Cir. 1965); United States ex rel. Tucker v. Donovan, 321 F.2d 114, 116 (2d Cir. 1963); United States ex rel. Proctor v. New York, 229 F.Supp. 696, 698 (S.D.N.Y.1964). Appellant fares no better in the federal courts, however, for they would also reject his extradition claims. See Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Hunt v. Eyman, 405 F.2d 384 (9th Cir. 1968); United States ex rel. Huntt v. Russell, 285 F.Supp. 765, 767 (E.D.Pa.1968), aff'd per curiam, 406 F.2d 774 (3d Cir. 1969); United States ex rel. Owens v. Russell, 260 F.Supp. 638 (M.D.Pa.1966); United States ex rel. Kelly v. Fullam, supra. The basis for denying relief when confinement stems from conviction following an allegedly illegal extradition is the rule that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ * * *” Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952)." }, { "docid": "1253789", "title": "", "text": "the Ker-Frisbie rule, which the Supreme Court has never felt impelled to disavow.] Id. at 65. However, the Court continued by stating that the outrageous treatment inflicted on Toscanino “brought [this] case within the Rochin [Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183] principle and demanded * * * a remedy.” Id., 510 F.2d at 65. But the same cannot be said of Lujan. It requires little argument to show that the government conduct of which he complains pales by comparison with that alleged by Toscanino . . which sinks to a violation of due process. * * * Id. . In Ker v. Illinois, 1886, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421, a United States citizen was forcibly removed from Peru for trial in an Illinois state court. The Court held that a defendant who has been convicted in a state court may not challenge the indictment or a conviction thereunder on the ground that he was improperly brought within the Court’s jurisdiction in violation of his Fourteenth Amendment right to due process of law. The Court further held that since the treaty of extradition between the United States and Peru did not confer a right to asylum on the defendant, he could not object to the fact that the state of Illinois had acquired custody over him through self-help rather than legal process. Eleven years later in Ex Parte Johnson, 1897, 167 U.S. 120, 17 S.Ct. 735, 42 L.Ed. 103, the Court clearly indicated that the Ker doctrine was equally applicable to defendants in federal criminal proceedings. . In Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, the Supreme Court reconsidered and unanimously reaffirmed the continuing viability of the Ker doctrine. Rejecting the claim that abduction and transfer of the defendant was itself a federal kidnapping, the Court, through Mr. Justice Black, declared: This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the power of a court to try a person" }, { "docid": "22990651", "title": "", "text": "a treaty obligation of the United States, the district court did not have jurisdiction over them. We would summarily dismiss the defendants’ contention, under the authority of ample precedent, if it concerned a mere violation of law not embodied in a treaty binding on the United States. A defendant may not ordinarily assert the illegality of his obtention to defeat the court’s jurisdiction over him. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511-12, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886); United States v. Quesada, 512 F.2d 1043,1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975); United States v. Winter, 509 F.2d 975, 985-86 (5th Cir.), cert. denied sub nom. Parks v. United States, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975); Voigt v. Toombs, 67 F.2d 744 (5th Cir. 1933), cert. dismissed, 291 U.S. 686, 54 S.Ct. 442, 78 L.Ed. 1072 (1934). This proposition, the so-called Ker-Frisbie doctrine, is equally valid where the illegality results from a breach of international law not codified in a treaty. United States v. Cadena, 585 F.2d 1252,1259-60 (5th Cir. 1978); United States v. Winter, 509 F.2d at 988-89; Autry v. Wiley, 440 F.2d 799, 802 (1st Cir. 1971); see United States v. Quesada; United States v. Lopez, 542 F.2d 283 (5th Cir. 1976) (per curiam). These precedents rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will. Frisbie v. Collins, 342 U.S. at 522, 72 S.Ct. at 512. Where a treaty has been violated, the rules may be quite different, as was demonstrated by the" }, { "docid": "7471284", "title": "", "text": "308, 310 (9th Cir.1980). Matta makes no claim that the government of Honduras has made an official protest. Indeed, Matta admits that the Honduran military cooperated in his arrest. Instead, he asserts that the protests before the American Embassy in Honduras and a bill introduced in the Honduran legislature (which was never voted on) show that the people of Honduras objected to the abduction. The United States, however, recognizes the Honduran government as the offi cial government of the Republic of Honduras. Were we to conclude that Honduras protested Matta’s arrest in the absence of word from the Honduran government, we would be denying the sovereignty of the Republic of Honduras. See Societe Nationale v. United States Dist. Court, 482 U.S. 522, 107 S.Ct. 2542, 2562, 96 L.Ed.2d 461 (1987) (“each state has a monopoly of governmental power within its borders”). Without an official protest, we cannot conclude that Honduras has objected to Mat-ta’s arrest. Therefore Matta’s claims of violations of international law do not entitle him to relief. 2. Violation of Matta’s Fourth and Fifth Amendment Rights For the past 100 years, the Supreme Court has consistently held that the manner in which a defendant is brought to trial does not affect the ability of the government to try him. The Ker-Frisbie doctrine, as this rule has come to be known, states that “the power of a court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a ‘forcible abduction’ ”. Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952) (citing Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886)). While notions of due process have been expanded since Frisbie, see Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court has consistently reaffirmed the Ker-Frisbie doctrine. See e.g." }, { "docid": "22087685", "title": "", "text": "that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.” Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952). “An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.” United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980) (citing Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Frisbie, 342 U.S. at 522, 72 S.Ct. 509; Ker v. Illinois, 119 U.S. 436, 443-44, 7 S.Ct. 225, 30 L.Ed. 421 (1886)). Nor is invalid extradition a sufficient ground upon which to grant habeas relief once the fugitive is present in the jurisdiction from which he fled. See Hudson v. Moran, 760 F.2d 1027, 1029 (9th Cir.1985); Siegel v. Edwards, 566 F.2d 958, 960 (5th Cir.1978) (per curiam). To the extent that the complaint in the present case alleges violations of extradition law, such allegations, if proven, would not invalidate Daro Weilburg’s incarceration. Therefore, with respect to these allegations, Heck v. Humphrey does not apply. In reaching this conclusion, we join the majority of those courts that have confronted this issue in published dispositions. See Young v. Nickols, 413 F.3d 416, 420 (4th Cir.2005) (holding that “Heck does not bar [the plaintiff] from invoking § 1983 to assert a claim for damages against the ... defendants for violating his extradition rights”); Harden v. Pataki, 320 F.3d 1289, 1298 (11th Cir.2003) (holding “that Heck does not bar most § 1983 damages claims based on improper extradition”); contra Knowlin v. Thompson, 207 F.3d 907, 908-09 (7th Cir.2000) (holding that Heck does bar such claims). The legal effect of the factual circumstances alleged here are better illuminated by this court’s holding in Draper v. Coombs, 792 F.2d 915 (9th Cir.1986). In Draper, a plaintiff brought a section 1983 action against law enforcement officials after they transported him from Oregon to Washington state, allegedly in violation of state and federal extradition laws. Id. at" } ]

[ { "docid": "8095165", "title": "", "text": "PER CURIAM: The complaint in the district court sought an injunction restraining the Orleans Parish School Board and certain of its officials from preventing a student from attending the public schools because of the manner in which he wore his hair. The district court denied relief. The complainant perfected an appeal to this Court. He then filed a formal motion for a stay of proceedings pending the final disposition of Ferrell v. Dallas Independent School District [5 Cir., 1968, 392 F.2d 697 ; cert. denied 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968)]. The application for the stay alleged that the issue in this case was similar to that in Ferrell, supra. The stay was granted. Upon final disposition of Ferrell, this appeal was calendared and has been duly heard. We are of the opinion that there is no material difference between this case and Ferrell. Our decision in that case, therefore, must control the disposition of this appeal. The judgment of the district court is Affirmed." } ]

[ { "docid": "15312136", "title": "", "text": "beards and certain hair styles and for the beliefs and attitudes which they thought these beards and hair styles represented. It is interesting to note in this connection that the rule forbids beards but not mustaches, and in fact testimony was presented that several students on the campus at San Jacinto Junior College wore mustaches. To continue to deny plaintiff an education by the enforcement of this unconstitutional rule would cause him irreparable harm and consequently the injunctive relief he seeks should be granted. In holding, under the facts of this case, that the regulation in question is an unreasonable and arbitrary classification in violation of the Fourteenth Amendment, this Court is following what it believes to be the better reasoned authorities in this area. Zachry v. Brown, supra; Breen v. Kahl, supra; Griffin v. Tatum, supra. Courts have been reluctant to conclude whether wearing one’s hair at a certain length or wearing a beard falls within that category of “expression” protected by the First Amendment. Under the record in this case it will not be necessary for the Court to reach that question. This record does raise a First Amendment question of a different dimension. This Court finds that the beard regulation was used as a catchall to enable school officials to deny admission to those students whose beliefs might differ from those of the school officials, clearly a First Amendment violation. Finally, this case has been of some concern to the Court because it is clear that plaintiff grew his beard for the purpose of testing the rule in question. Defendants argue that to rule for plaintiff would be to undermine the authority of the college officials. The Court rejects this argument and agrees with the court in Griffin which stated: “Such an argument can be applied to any school rule, however, and, if accepted, would eliminate all student rights.” Id. at 68. This Court realizes that it should not casually interfere with the functioning of the school. But, this Court also realizes that when a public agency chooses to use the awesome power of the state to" }, { "docid": "19786571", "title": "", "text": "and disruption of the educational process, both in the academic classroom and during physical education classes. Plaintiff’s conduct “materially and substantially interfere [d] with the requirements of appropriate discipline in the operation of the school.” Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966). It is important to note that the disruption found here resulted not from the very fact that a student had violated a rule; rather, it resulted directly from plaintiff’s wearing long hair. Had disruption resulted indirectly merely because a pupil chose to flaunt the school’s authority by violating a rule, it would lend absolutely no constitutional support to the rule itself. Breen v. Kahl, 296 F.Supp. 702 (W.D.Wis.1969). Tinker v. Des Moines Independent Comm. School Dist., supra, dealt with conduct closely akin to “pure speech”. Yet the Court held that: “[CJonduct by the student, in class or out of it, which for any reason— whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guaranty of freedom of speech.” Tinker, supra. A fortiori, where the conduct involved is wearing long hair, which is rather far removed from “pure speech”, the Constitution permits reasonable regulation on a showing of classwork disruption. The Court concludes that although plaintiff’s conduct may have been protected under the First Amendment, still the defendants have not unconstitutionally infringed his substantive due process rights for the reason that plaintiff’s conduct directly and materially interfered with a vital interest of the state. Authorities relied upon by plaintiff such as Breen v. Kahl, supra, and Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969), are inapposite as not involving a showing of direct classroom disruption. EQUAL PROTECTION Plaintiff argues that the defendants’ rule against long hair constitutes an arbitrary and unreasonable classification, and that his suspension for violation of the rule constitutes a denial of the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution. However, it is only the invidious discrimination which is prohibited by the Fourteenth Amendment." }, { "docid": "9751457", "title": "", "text": "bobbed haired nurses.” W. Severn, The Long And Short of It 122 (1971). In Ho Ah Kow v. Nunan, 12 Fed. Cas. 252, an alien Chinese was allowed to recover damages under the Civil Rights Act against the sheriff of San Francisco for cutting his hair “to an uniform length of one inch from the scalp” on entering a prison to serve a five-day sentence for a petty offense. The Circuit Court, speaking through Mr. Justice Field, held that the ordinance made an invidious discrimination against the Chinese (“only the dread of the loss of his queue will induce a Chinaman to pay his fine,” id., at 255) and was a cruel and unusual punishment. Ibid. “Long hair” cases have occasioned a deep division in the circuits. There is a conflict as to the extent that a student’s interest in his hair style enjoys constitutional protection, compare Breen v. Kahl, 419 F. 2d 1034 (CA7 1969), and Richards v. Thurston, 424 F. 2d 1281 (CA1 1970), with Ferrell v. Dallas Ind. School Dist., 392 F. 2d 697 (CA5 1968), and Jackson v. Dorrier, 424 F. 2d 213 (CA6 1970). Where it has been found to exist, there is a split as to the constitutional basis for such protection. Compare Breen, supra, with Richards, supra. And there is a conflict as to the showing necessary by the school board to justify a hair regulation even among those circuits permitting such a justification. Compare the decision of the Ninth Circuit in the present ease, and its companion, King v. Saddleback Jr. College Dist., 445 F. 2d 932 (1971), with Griffin v. Tatum, 425 F. 2d 201 (CA5 1970). Not only is the conflict deep and irreconcilable, but the issue is a recurrent one. There are well over 50 reported cases squarely presenting the issue, students having won in about half of them. In addition to the 37 cases cited in Note, 84 Harv. L. Rev. 1702, 1703 n. 4 (1971), see, e. g., King v. Saddleback Jr. College Dist., supra; Valdes v. Monroe County Bd. of Public Instruction, 325 F. Supp. 572" }, { "docid": "22440653", "title": "", "text": "court must be affirmed. Affirmed. . For a thoughtful discussion, see Gold-stein, The Scope and Sources of School Board Authority to Regulate Student Conduct and Status: A Nonconstitutional Analysis, 117 U.Pa.L.Rev. 373 (1969). . See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 671-674, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963). . Decisions holding against the student include the following: Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir. 1968), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968); Davis v. Firment, 269 F.Supp. 524 (E.D.La.1967), aff’d, 408 F.2d 1085 (5th Cir. 1969) ; Crews v. Cloncs, 303 F.Supp. 1370 (S,D.Ind.1969); Brick v. Board of Education, 305 F.Supp. 1316 (D.Colo.1969); Stevenson v. Wheeler County Board of Education, 306 F.Supp. 97 (S.D.Ga.1969) (mustaches); Akin v. Board of Education, 262 Cal.App.2d 161, 68 Cal.Rptr. 557 (1968); Neuhaus v. Torrey, 310 F.Supp. 192 (N.D.Cal., March 10, 1970); and Leonard v. School Committee of Attleboro, supra. Several decisions gave considerable weight to the evidence of prior disruptions of the school atmosphere caused by unusual hair styles. E. g., Ferrell, Davis, Brick. The Crews decision relied on the fact of prior disruptions concerning the particular plaintiff there involved. Ranged against these authorities are the following cases holding for the student: Finot v. Pasadena City Board of Education, 250 Cal.App.2d 189, 58 Cal.Rptr. 520 (1967) (First Amendment); Meyers v. Arcata Union High School District, 269 Cal.App.2d 549, 75 Cal.Rptr. 68, 72-73 (1969) (First Amendment); Sims v. Colfax Community School District, 307 F.Supp. 485 (S.D. Iowa 1970) (Due Process Clause protects female student’s long, hair); Breen v. Kahl. 296 F.Supp. 702 (W.D.Wis. 1969) (Due Process Clause), aff’d, 419 F.2d 1034 (7th Cir. 1969) (“penumbra” of First Amendment or Ninth Amendment); Calbillo v. San Jacinto Junior College, 305 F.Supp. 857 (S.D.Tex. 1969) (Equal Protection Clause in a junior college context); Zachry v. Brown, 299 F.Supp. 1360 (N.D.Ala.1967) (Equal Protection Clause); Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969) (Equal Protection Clause and Due Process Clause); Westley v. Rossi, 305 F.Supp." }, { "docid": "19786572", "title": "", "text": "of course, not immunized by the constitutional guaranty of freedom of speech.” Tinker, supra. A fortiori, where the conduct involved is wearing long hair, which is rather far removed from “pure speech”, the Constitution permits reasonable regulation on a showing of classwork disruption. The Court concludes that although plaintiff’s conduct may have been protected under the First Amendment, still the defendants have not unconstitutionally infringed his substantive due process rights for the reason that plaintiff’s conduct directly and materially interfered with a vital interest of the state. Authorities relied upon by plaintiff such as Breen v. Kahl, supra, and Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969), are inapposite as not involving a showing of direct classroom disruption. EQUAL PROTECTION Plaintiff argues that the defendants’ rule against long hair constitutes an arbitrary and unreasonable classification, and that his suspension for violation of the rule constitutes a denial of the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution. However, it is only the invidious discrimination which is prohibited by the Fourteenth Amendment. Williamson v. Lee Optical of Okla., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Even though plaintiff’s conduct here is assumed to be constitutionally protected, still the defendants’ enforcement of the long hair regulation is so directly related to the furtherance of a vital and important state interest, that of the maintenance of a peaceful forum for the educational function, that this Court finds no violation of equal protection rights. No arbitrary or capricious discrimination appears; in view of the disruption shown to have resulted, no unreasonable conditions have been attached to the plaintiff’s continuing his education within the Washington Township Schools. Cf. Griffin v. Tatum, supra. RIGHT OF PRIVACY Finally, plaintiff argues that under the case of Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), there is a right of privacy, indeed a right of personality or of individuality, which is within penumbras of particular provisions of the Bill of Rights, formed by emanations which help give life and substance to the explicit constitutional guarantees," }, { "docid": "12515842", "title": "", "text": "857 (S.D.Tex. 1969); Westley v. Rossi, 305 F.Supp. 706 (D.Minn.1969) ; Richards v. Thurston, 304 F.Supp. 449 (D.Mass.1969) ; Griffin v. Tatum, 300 F.Supp. 60 (M.D. Ala.1969), aff’d in part, rev’d in part, 425 F.2d 201 (5th Cir. 1970) ; Zachry v. Brown, 299 F.Supp. 1360 (N.D.Ala.1967) ; Breen v. Kahl, 296 F.Supp. 702 (W.D.Wis.), aff’d, 419 F.2d 1034 (7th Cir. 1969), cert. den., 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970). . Griffin v. Tatum, supra, 425 F.2d at 203. . “Pupils shall be properly dressed and groomed at all times. * * * “No child shall be admitted to school or shall be allowed to continue in school who fails to conform to the proper standards of dress. (Articles 2780 and 2904 of Civil Statutes of the State of Texas, Vernon’s Ann.Civ.St.) “Failure to comply with the rules of dress shall be grounds for suspension.” . To the above was added, in relevant part, the following: “High School Dress “Acceptable for Boys “4. Hair well-groomed.” “Not Acceptable for Boys $ “3. Extreme hair styles which are too long or tend to be untidy.” . '■‘Only relevant amendment reads: “Acceptable for Boys * * * sfc sj* “4. Hair well-groomed and trimmed, clean shaven, and no sideburns below the middle of the ear.” . Allowed sideburns to extend to bottom of earlobe. . Each committee member was given a packet of materials including the Sixth Circuit’s opinion in Breen v. Kahl, supra; newspaper article reflecting denial of certiorari; editorial reflecting difficulty in getting job with long hair; and dress codes from school districts around the State of Texas. . Arts. 2780 and 2904, Civil Statutes of the State of Texas, cited as authority, are now §§ 23.26 and 21.301, Texas Education Code (1969), respectively. The italicized portions of the above were added to the Board’s Policy 5370 as Administrative Regulations. . Indeed, the evidence shows that plaintiff Chesley Karr was a good student, participated and represented his school in extracurricular activities, and had no discipline problems except one prior occasion when he was told to cut'his hair." }, { "docid": "15312135", "title": "", "text": "given. Certainly, such are not a badge of a troublemaker or a malcontent. Unless there is a showing that a hair style or a manner of dress has a reasonable relationship to the health, welfare, morals, and discipline of students, a sweeping prohibition regarding same cannot in this Court’s opinion be sustained. Each case must really stand upon its own factual basis. Here, we have no testimony of a relationship to the health, welfare, morals, or discipline of any student, and absent such, a broad regulation like the one we are concerned with is unreasonable and cannot be sustained. From the record before the Court, it can come to no other conclusion than that the regulation in question constitutes an unreasonable classification in violation of the equal protection clause of the Fourteenth Amendment. There was no evidence of any material and substantial disruption of the school functions and the justifications offered by the school officials do not support the rule. The regulation was basically enacted to implement the personal distaste of certain school officials for beards and certain hair styles and for the beliefs and attitudes which they thought these beards and hair styles represented. It is interesting to note in this connection that the rule forbids beards but not mustaches, and in fact testimony was presented that several students on the campus at San Jacinto Junior College wore mustaches. To continue to deny plaintiff an education by the enforcement of this unconstitutional rule would cause him irreparable harm and consequently the injunctive relief he seeks should be granted. In holding, under the facts of this case, that the regulation in question is an unreasonable and arbitrary classification in violation of the Fourteenth Amendment, this Court is following what it believes to be the better reasoned authorities in this area. Zachry v. Brown, supra; Breen v. Kahl, supra; Griffin v. Tatum, supra. Courts have been reluctant to conclude whether wearing one’s hair at a certain length or wearing a beard falls within that category of “expression” protected by the First Amendment. Under the record in this case it will not" }, { "docid": "15312131", "title": "", "text": "the administrators of public colleges to classify students with respect to dress, appearance and behavior must be respected and preserved by the courts. However, the equal protection clause of the fourteenth amendment prohibits classification upon an unreasonable basis. This court is of the firm opinion that the classification of male students attending Jefferson State Junior College by their hair style is unreasonable and fails to pass constitutional muster. “It needs to be emphasized that the defendants have not sought to justify such classification for moral and social reasons. The only reason stated upon the hearing of this case was their understandable personal dislike of long hair on men students. The requirement that these plaintiffs cut their hair to conform to normal and conventional styles is just as unreasonable as would palpably be a requirement that all male students of the college wear their hair down over their ears and collars.” 299 F.Supp. at 1362. In Breen v. Kahl, supra, the Federal District Court struck down a rule governing the length of hair as violative of the due process clause of the Fourteenth Amendment. The court pointed to the lack of any direct evidence that the long hair distracted other students or in any way disrupted the learning process. In Griffin v. Tatum, supra, the court rejected the numerous reasons given by school authorities to justify a haircut rule. In holding that the haircut rule violated the Fourteenth Amendment, the court pointed out that school authorities could accomplish their purposes by methods other than having the students’ heads shorn. “The school authorities’ ‘justification,’ or the reasons they advance for the necessity for such a haircut rule, completely fail. If combing hair or passing combs in classes is distracting, the teachers, in the exercise of their authority, may stop this without requiring that the head be shorn. If there is congestion at the girl’s mirrors, or if the boys are late for classes because they linger in the restrooms grooming their hair, appropriate disciplinary measures may be taken to stop this without requiring a particular hair style. If there is any hygienic" }, { "docid": "19786569", "title": "", "text": "a question whether wearing long hair in this case is also First Amendment protected speech. In view of the vagueness of plaintiff’s answer to the question why he wears long hair, set out above, this Court assumes without deciding that plaintiff’s choice of hair styles is an expression of opinion which constitutes symbolic speech protected by the First Amendment. However, it is clear that the right to free expression is not absolute, and that it may be infringed by state authority upon a showing of a compelling reason; particularly is this the case when “pure speech” is not involved but rather conduct which reflects or is imbued with speech or opinion. Cox v. State of Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). Here the interest of the state is in maintaining an orderly and efficient school system, an academic atmosphere in which knowledge can be peacefully transmitted to the pupils. The importance of this state interest cannot be overstated. “Today education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship.” Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). To require the school authorities to attempt to carry out the educational function in an atmosphere of turmoil and disruption would be ludicrous; hence, conduct which has the effect of bringing about disruption, whether intending that effect or not, may constitutionally be proscribed within reason. Ferrell v. Dallas Independent School District, 261 F.Supp. 545 (N.D.Texas 1966), aff’d 392 F.2d 697 (5th Cir. 1968), cert. den. 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968). The Court considers the Ferrell case to be very well reasoned and highly persuasive. In the case at bar, evidence was presented, and this Court finds, that plaintiff’s appearance directly caused disturbances" }, { "docid": "12515819", "title": "", "text": "this case. While the Complaint sought a declaration that §§ 21.301 and 23.26, Texas Education Code, V.T.C.A., are unconstitutional, it nowhere sought an injunction “restraining the action of any officer of [the] State in the enforcement or execution of such statutes.” Even this claim was abandoned on oral argument, leaving only the attack on a portion of a school board policy which, having only local effect, may be determined by a single district judge rather than a three-judge federal court. Since no specific evidence was offered as to the amount of money damages plaintiffs have suffered, that portion of the Complaint and its prayer must be dismissed. This being the case, the Court questions whether a formal ruling on the propriety of entertaining this suit as a class action is necessary, since any grant or denial of the declaratory and injunctive relief sought by the named plaintiffs would necessarily satisfy the alleged class. Since the point has been raised, briefed and argued, however, the Court holds that, in light of evidence as to how many students the “hair-cut” provision of the dress code has and potentially may affect, the requirements of Rule 23(a) and (b) (2), F.R.Civ.P., have been met, and that the named plaintiffs are entitled to bring this suit as a class action. Defendants’ Motion to Dismiss is therefore denied, and it is so ordered. To the extent that the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Defenses are directed to the same issues, they are without merit. Before examining the circumstances of this particular case, a brief, if perhaps over-simplified summary of “hair law” might be helpful. Following a course first charted in this circuit, most courts have either held or assumed that one’s choice of hair style is constitutionally protected and that the State may invade this interest only upon a showing of compelling reason, i. e., that the forbidden style, if allowed, would be a material and substantial interference to the educational system. Consequently, hair-cut codes have been upheld where the school has objectively demonstrated that long hair resulted in disruptions of" }, { "docid": "12515843", "title": "", "text": "Extreme hair styles which are too long or tend to be untidy.” . '■‘Only relevant amendment reads: “Acceptable for Boys * * * sfc sj* “4. Hair well-groomed and trimmed, clean shaven, and no sideburns below the middle of the ear.” . Allowed sideburns to extend to bottom of earlobe. . Each committee member was given a packet of materials including the Sixth Circuit’s opinion in Breen v. Kahl, supra; newspaper article reflecting denial of certiorari; editorial reflecting difficulty in getting job with long hair; and dress codes from school districts around the State of Texas. . Arts. 2780 and 2904, Civil Statutes of the State of Texas, cited as authority, are now §§ 23.26 and 21.301, Texas Education Code (1969), respectively. The italicized portions of the above were added to the Board’s Policy 5370 as Administrative Regulations. . Indeed, the evidence shows that plaintiff Chesley Karr was a good student, participated and represented his school in extracurricular activities, and had no discipline problems except one prior occasion when he was told to cut'his hair. His physical appearance and demeanor in court were exemplary. . While the contrary may have been true in Dallas in 1966, see Ferrell v. Dallas Ind. School Dist., supra, and today in Pampa, see Whitsell v. Pampa Ind. School Dist., supra, all courts have emphasized the necessity for a case-by-case approach, viewing the issue on the particular facts, circumstances and evidence of each ease, and this opinion is so limited. . The Tenth Defense urges the in loco parentis position of the school as justification for the regulation. In the absence of any other justification, the doctrine of in loco parentis has no applicability where, as here, the parents agree with the child rather than the school. See Breen v. Kahl, supra, 419 F.2d at 1037-1038. . See Lansdale v. Tyler Jr. College, supra. . Our currency reflects liair styles which would offend the regulation here in question on the $1, $2, $5, $10, $20, $100, $500, $5,000, and $10,000 bills. Postage stamps in the last two regular series reflect these same styles and others." }, { "docid": "12515844", "title": "", "text": "His physical appearance and demeanor in court were exemplary. . While the contrary may have been true in Dallas in 1966, see Ferrell v. Dallas Ind. School Dist., supra, and today in Pampa, see Whitsell v. Pampa Ind. School Dist., supra, all courts have emphasized the necessity for a case-by-case approach, viewing the issue on the particular facts, circumstances and evidence of each ease, and this opinion is so limited. . The Tenth Defense urges the in loco parentis position of the school as justification for the regulation. In the absence of any other justification, the doctrine of in loco parentis has no applicability where, as here, the parents agree with the child rather than the school. See Breen v. Kahl, supra, 419 F.2d at 1037-1038. . See Lansdale v. Tyler Jr. College, supra. . Our currency reflects liair styles which would offend the regulation here in question on the $1, $2, $5, $10, $20, $100, $500, $5,000, and $10,000 bills. Postage stamps in the last two regular series reflect these same styles and others. . This is not to indicate that long-haired men are necessarily good, talented, or anything else. The point is that length of hair is irrelevant to any classification other than ability to grow hair. . Tex.Const. Art. VII, § 1. . Id. Art. I, § 3. . See Miller v. Gillis, supra; Calbillo v. San Jacinto Jr. College, supra; Westley v. Rossi, supra; Griffin v. Tatum, supra, aff’d, 425 F.2d at 203; Zachry v. Brown, supra. . Griffin v. Tatum, supra, 300 F.Supp. at 62. . See, e. g., cases cited note 8, supra. . See, e, g., Griffin v. Tatum, supra, 425 F.2d at 203-204. . See Sims v. Colfax Community School Dist., supra; Westley v. Rossi, supra; Richards v. Thurston, supra; Breen v. Kahl, supra. . See, e. g., Wood v. Alamo Hts. Ind. School Dist., supra, 308 F.Supp. at 552, 554. . This Memorandum of Decision is entered in lieu of findings of fact and conelusions of law, pursuant to Rule 52(a), F.R.Civ.P." }, { "docid": "970833", "title": "", "text": "“[t]he touchstone for sustaining such regulations is the demonstration that they are necessary to alleviate interference with the educational process.” Id. at 1158 (quoting Griffin, supra, 425 F.2d at 203). Federal district courts generally, as well as those of this circuit, have disagreed about the validity of hair-length regulations. Aside from the instant case, two district courts in this circuit have upheld hair regulations against constitutional challenges. Carter v. Hodges, 317 F.Supp. 89 (W.D.Ark.1970); Gian-greco v. Center School District, 313 F. Supp. 776 (W.D.Mo.1969). In both cases, however, the courts proceeded from the premise that the state carries the burden of demonstrating the reasonableness of the regulation. And, in both cases, the courts found that the students’ appearance had, in fact, caused school disruptions. The other district courts of this circuit which have considered the issue have followed the rationale of the- First and Seventh Circuits in holding that students possess a constitutionally protected right to govern their personal appearance, and that the state must justify any infringement of this right. Parker v. Fry, 323 F.Supp. 728 (E.D.Ark.1971); Turley v. Adel Community School District, 322 F.Supp. 402 (S.D.Iowa 1971); Westley v. Rossi, 305 F.Supp. 706 (D. Minn.1969); cf. Sims v. Colfax Community School District, 307 F.Supp. 485 (S.D.Iowa 1970) (hairstyle of female students). In a comment typical of those made by other district judges of this circuit in rejecting the validity of hair regulations, Judge Eisele, in Fry, supra, said: The sincerity of the [school administrators] is not in doubt. The Court believes that the “hair” rule was adopted because of the conviction of school authorities that to permit extreme hair styles would result in disruption or distraction in the classrooms. * * * But the facts do not appear to sustain the fear. Generally this fear is based upon the idea as stated by Mr. Swift, the superintendent, that anything out of the ordinary attracts attention and therefore could be disruptive of the educational process. This appears, however, to be more of an educational philosophy than an established scientific fact. Students in our high schools and colleges must have" }, { "docid": "970831", "title": "", "text": "F.2d 444 (6th Cir. 1971); Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert, denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970); King v. Saddleback Junior College District, 445 F.2d 932 (9th Cir. 1971). Each has adopted a different approach in sustaining these regulations. In King, supra, 445 F.2d at 940, the Ninth Circuit held that students have no “substantial constitutional right” to wear their hair as they desire. As a consequence, school authorities need not present proof of actual classroom disruptions to support hair regulations. Mere opinion evidence of teachers or school administrators that long hair interferes with the educational process will suffice. The Sixth Circuit, although not recognizing a specific constitutional right to determine one’s hair length and style, requires proof that the appearance of the students caused classroom or other school disruptions. Implicit in these decisions is a recognition of the principle that the state has the burden of establishing the reasonableness of its regulations. See Gfell, swpra, 441 F.2d 444; Jackson, supra, 424 F.2d 213. The Fifth Circuit’s decisions have turned on the reasonableness and necessity of the regulations. In Ferrell, supra, 392 F.2d 697, the court, while recognizing the right of students to govern their personal appearance, held that this right was not unreasonably infringed because the school board was able to demonstrate a need for the regulations to control disruptions attributable to controversies over student hair lengths which departed from the more conventional styles. The court carefully distinguished a district court decision which had struck down a similar regulation because “[n]o suggestion was made that such [hairstyles] had any effect upon the health, discipline, or decorum of the institution.” 392 F.2d at 703. In a subsequent decision, another panel of the Fifth Circuit did not hesitate to strike down a regulation restricting the style, rather than the length, of hair. Griffin v. Tatum, 425 F.2d 201 (5th Cir. 1970). Later, in’Stevenson v. Board of Education of Wheeler County, Georgia, 426 F.2d 1154 (5th Cir.), cert, denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970), the court made clear that" }, { "docid": "970830", "title": "", "text": "morning. The response by Page of Virginia pointed out that even those “trivial” rights had been known to have been impaired —to the Colonists’ consternation — but that the right of assembly ought to be specified since it was so basic to other rights. The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance. We conclude that within the commodious concept of liberty, embracing freedoms great and small, is the right to wear one’s hair as he wishes. Id. at 1284-1285 (footnotes omitted). The court went on to note that, although this right is not a “fundamental” freedom which can be impaired only by showing a compelling state interest, the burden of justifying restrictions on this freedom still rests with the state. The Fifth, Sixth, and Ninth Circuits have sustained school codes regulating hair. Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir.), cert, denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968); Gfell v. Rickel-man, 441 F.2d 444 (6th Cir. 1971); Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert, denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970); King v. Saddleback Junior College District, 445 F.2d 932 (9th Cir. 1971). Each has adopted a different approach in sustaining these regulations. In King, supra, 445 F.2d at 940, the Ninth Circuit held that students have no “substantial constitutional right” to wear their hair as they desire. As a consequence, school authorities need not present proof of actual classroom disruptions to support hair regulations. Mere opinion evidence of teachers or school administrators that long hair interferes with the educational process will suffice. The Sixth Circuit, although not recognizing a specific constitutional right to determine one’s hair length and style, requires proof that the appearance of the students caused classroom or other school disruptions. Implicit in these decisions is a recognition of the principle that the state has the burden of establishing the reasonableness of its regulations. See Gfell, swpra, 441 F.2d 444; Jackson, supra, 424 F.2d 213. The Fifth Circuit’s" }, { "docid": "15312130", "title": "", "text": "observed that long hair and beards are the “badge of hippies.” So they adopted a rule which would keep “these people” cf. their campus. It is interesting to note that none of the reasons given in justification of the rule relate to any disruptions on the San Jacinto Junior College campus. And, in fact, this record is completely devoid of evidence that any type of disruption has been occasioned by the wearing of beards on campus. Thus, the present case is distinguishable from Ferrell v. Dallas Independent School Dist., supra, which upheld a school regulation banning “Beatle”- type haircuts. Ferrell is replete with testimony of campus disruptions. Whereas in Zaehry v. Brown, supra, there was no testimony that the offending hair style had any effect upon the health, discipline, or decorum of the institution. The district judge found that the regulation in question was promulgated solely because the school administrators disliked what they considered exotic hair styles. In holding the regulation unconstitutional, the court said: “The wide latitude permitted legislatures of the states and therefore the administrators of public colleges to classify students with respect to dress, appearance and behavior must be respected and preserved by the courts. However, the equal protection clause of the fourteenth amendment prohibits classification upon an unreasonable basis. This court is of the firm opinion that the classification of male students attending Jefferson State Junior College by their hair style is unreasonable and fails to pass constitutional muster. “It needs to be emphasized that the defendants have not sought to justify such classification for moral and social reasons. The only reason stated upon the hearing of this case was their understandable personal dislike of long hair on men students. The requirement that these plaintiffs cut their hair to conform to normal and conventional styles is just as unreasonable as would palpably be a requirement that all male students of the college wear their hair down over their ears and collars.” 299 F.Supp. at 1362. In Breen v. Kahl, supra, the Federal District Court struck down a rule governing the length of hair as violative of" }, { "docid": "22440654", "title": "", "text": "weight to the evidence of prior disruptions of the school atmosphere caused by unusual hair styles. E. g., Ferrell, Davis, Brick. The Crews decision relied on the fact of prior disruptions concerning the particular plaintiff there involved. Ranged against these authorities are the following cases holding for the student: Finot v. Pasadena City Board of Education, 250 Cal.App.2d 189, 58 Cal.Rptr. 520 (1967) (First Amendment); Meyers v. Arcata Union High School District, 269 Cal.App.2d 549, 75 Cal.Rptr. 68, 72-73 (1969) (First Amendment); Sims v. Colfax Community School District, 307 F.Supp. 485 (S.D. Iowa 1970) (Due Process Clause protects female student’s long, hair); Breen v. Kahl. 296 F.Supp. 702 (W.D.Wis. 1969) (Due Process Clause), aff’d, 419 F.2d 1034 (7th Cir. 1969) (“penumbra” of First Amendment or Ninth Amendment); Calbillo v. San Jacinto Junior College, 305 F.Supp. 857 (S.D.Tex. 1969) (Equal Protection Clause in a junior college context); Zachry v. Brown, 299 F.Supp. 1360 (N.D.Ala.1967) (Equal Protection Clause); Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala.1969) (Equal Protection Clause and Due Process Clause); Westley v. Rossi, 305 F.Supp. 706 (D.Minn.1969) (same). In Farrell v. Smith, 310 F.Supp. 732 (D.Me.1970), the court explicitly accepted the proposition that the right to wear one’s hair at any length is an aspect of personal liberty protected by the Due Process Clause of the Fourteenth Amendment, following the “pro-hair” cases cited above. However, the court on the facts before it held that the state vocational school had met its substantial burden of justification by a showing that neatness of appearance enhanced the employment opportunities of its students. . See also two Fifth Circuit “freedom button” cases expressly differentiated because of the disruptive response to the plaintiffs in the latter case which had not occurred in the former: Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966), and Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966). . That “privacy” has not been generally understood in the latter sense is indicated by the definition of privacy given by Alan F. Westin in his wide-ranging book Privacy and Freedom, (1967), at p. 7: “Privacy is the" }, { "docid": "22593314", "title": "", "text": "students barred from school by a hair-length regulation similar to that utilized by Coronado High School in the instant case. In its opinion, this court assumed without deciding that “a hair style is a constitutionally protected mode of expression”, but concluded that school authorities might place restrictions upon this “right” if those restrictions served “compelling” state interests. The court held that the interest of the state “in maintaining an effective and efficient school system” was a compelling state interest sufficient to justify the regulation. Since Ferrell, the circuit has considered high school hair and grooming regulations in numerous other cases. In each of those cases, except one, the validity of such regulations was affirmed in this court. In one case, Dawson v. Hillsborough County, Florida School Board, 5 Cir., 1971, 445 F.2d 308, this court affirmed a district court finding that a local school hair regulation was unconstitutional because it was unrelated to legitimate school board objectives. II. The district court, relying on Ferrell and the subsequent Fifth Circuit cases, ruled that “one’s choice of hair style is constitutionally protected” and that the burden was upon school authorities to demonstrate that long hair resulted in disruption of the educational process. The district court held that: [I] f the school authorities [are] unable to support factually their rule, offering speculation only, the rule is * * * unreasonable and hence in violation of the equal protection and/or due process clauses of the Fourteenth Amendment. * * * “The touchstone for sustaining such regulations is the demonstration that they are necessary to alleviate interference with the educational process.” Griffin v. Tatum, 5 Cir., 1970, 425 F.2d 201, 203. In applying this test, the district court heard evidence from both parties. Witnesses for the defendant school board were three students, two teachers, two student activities directors, three assistant principals, four principals, and the school superintendent. All of these witnesses testified, in substance, that students with long hair caused distraction in the classroom, disciplinary problems, health problems, and safety problems. Plaintiff called 17 witnesses on his behalf. Of these, three were members of the" }, { "docid": "15528335", "title": "", "text": "issue presented by this case. The only pronouncement, outside the denial of certiorari in Ferret, supra, and though specifically stated not to be a hair style case, is Tinker v. Des Moines Independent Community School, 393 U.S. 503, 89 S.Ct. 733 (1969), a First Amendment case, where the Court stated: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.” So plaintiff here does not lose his constitutional rights, even though not based on the First Amendment, on entering the school’s domain. The court has been cited to four United States District Court decisions where injunctive relief against school authorities in hair style cases has been granted. Richards v. Thurston, 304 F.Supp. 449 (D.Mass. 9/23/69); Zachry v. Brown, 299 F.Supp. 1360 (N.D.Ala.1967); Griffin v. Tatum, 300 F.Supp. 60 (M.D.Ala. 1969); Breen v. Kahl, 296 F.Supp. 702 (W.D.Wis.1969). See also Cirker v. Yohe, (9/16/69) Ct. of Common Pleas, Pa. #2108 Chester County. Among cases holding to the contrary, the only circuit court case called to the court’s attention is Ferrell v. Dallas Indep. School Dist., supra, 392 F.2d 697 (5th Cir.) cert, denied 393 U.S. 508, 89 S.Ct. 98 (1968). Though this case can be said not to be a strong precedent because of the dissenting opinion and distinguishable on the basis that after suspension the group of students involved chided and openly defied the school administration with a phonograph record widely broadcast; yet it must be admitted that the rationale and philosophy of that court is contrary to the view herein taken by this court. Noted also is the denial of certiorari in that case. Within the last ten days a decision from the United States District Court in Indiana has refused injunctive relief in a case similar to the case at bar. Crews v. Clones, 303 F.Supp. 1370 (S.D.Ind. 9/17/69). See also Davis v. Firment, 269 F.Supp. 524 (E.D.La.1967). This court believes that the right of plaintiff Bruce Westley to wear a" }, { "docid": "12515820", "title": "", "text": "students the “hair-cut” provision of the dress code has and potentially may affect, the requirements of Rule 23(a) and (b) (2), F.R.Civ.P., have been met, and that the named plaintiffs are entitled to bring this suit as a class action. Defendants’ Motion to Dismiss is therefore denied, and it is so ordered. To the extent that the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Defenses are directed to the same issues, they are without merit. Before examining the circumstances of this particular case, a brief, if perhaps over-simplified summary of “hair law” might be helpful. Following a course first charted in this circuit, most courts have either held or assumed that one’s choice of hair style is constitutionally protected and that the State may invade this interest only upon a showing of compelling reason, i. e., that the forbidden style, if allowed, would be a material and substantial interference to the educational system. Consequently, hair-cut codes have been upheld where the school has objectively demonstrated that long hair resulted in disruptions of the educational process such as harassment, use of obscene or derogatory language, fights, health or safety hazards, obscene appearance or distraction of other students. Conversely, if the school authorities were unable to support factually their rule, offering speculation only, the rule is held unreasonable and hence in violation of the equal protection and/or due process clauses of the Fourteenth Amendment. In short, “The touchstone for sustaining such regulations is the demonstration that they are necessary to alleviate interference with the educational process.” The policy of the Board of Trustees of the El Paso Independent School District regarding student dress was first codified in March, 1969. The first specific reference to hair was added in Sep tember, 1967, and remained substantially unchanged through amendments of the Board’s policy 5370 in September, 1968, and May, 1969. Prompted by a request of the Superintendent's Student Advisory Committee in May, 1970, that the dress code be suspended for the remainder of the school year in order to gain empirical evidence of the necessity therefor, the Board of Trustees set" } ]

[ { "docid": "14592461", "title": "", "text": "Supp. Resp. 8. Indeed, in stating that “[competitive LECs may partner with a variety of VoIP partners and collect symmetrical access charges for covered services,” the FCC conditioned its ruling: The LECs may collect access charges “as long as one of the partners jointly providing a call delivers the end office switching functionality.” In re Connect Am. Fund, 2015 WL 628983, ¶ 21 (emphasis added). According to AT & T, for PPCC services, neither the services that Broadvox provides nor those that its VoIP partners provide are “ ‘comparable’ to the termination of a call to a called party,” which is a service that “unaffiliated entities” provide in the second half of the call, and therefore Broadvox cannot impose terminating charges for its PPCC services. AT & T Supp. Resp. at 8-9. Thus, the issue is whether a PPCC call is a single (but two-phased) call for which Broadvox only participates in the first phase and consequently does not provide terminating services, or two distinct calls, such that Broadvox provides terminating services for the initial call to the calling card platform. Broadvox does not cite any authority to support its position that a PPCC call is one call. AT & T cites as authoritative In re AT & T Corp. Pet. for Declaratory Ruling Regarding Enhanced Prepaid Calling Card Servs., 20 FCC Red. 4826 (F.C.C.2005) (Calling Card. Order and Notice of Proposed Rulemaking ). There, it was AT & T that argued that PPCC calls, at least when an advertising message is communicated to the caller at the platform, consist of two calls, one to the platform and a second to the called party. Id. ¶23. The FCC rejected that argument, reasoning that “it cannot be the case that communication of the advertising message creates an endpoint because all calling card platforms engage in some form of communication with the calling party, and the Commission never has found this communication to be relevant for jurisdictional purposes.” Id. ¶ 23. The commission observed that, “[f]or purposes of determining the jurisdiction of calling card calls, the Commission has applied an ‘end-to-end’ analysis," } ]

[ { "docid": "4327879", "title": "", "text": "local service area, the 1996 Act set out to ensure that “[sjtates may no longer enforce laws that impede[] competition,” and subjected incumbent LECs “to a host of duties intended to facilitate market entry.” AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 119 S.Ct. 721, 726, 142 L.Ed.2d 835 (1999). Among the duties of incumbent LECs is to “provide, for the facilities and equipment of any requesting telecommunications carrier, interconnection with the local exchange carrier’s network ... for the transmission and routing of telephone exchange service and exchange access.” 47 U.S.C. § 251(c)(2). (“Telephone exchange service” and “exchange access” are words of art to which we shall later return.) Competitor LECs have sprang into being as a result, and their customers call, and receive calls from, customers of the incumbents. We have already noted that § 251(b)(5) of the Act establishes the duty among local exchange carriers “to establish reciprocal compensation arrangements for the transport and termination of telecommunications.” 47 U.S.C. § 251(b)(5). Thus, when a customer of LEC A calls a customer of LEC B, LEC A must pay LEC B for completing the call, a cost usually paid on a per-minute basis. Although § 251(b)(5) purports to extend reciprocal compensation to all “telecommunications,” the Commission has construed the reciprocal compensation requirement as limited to local traffic. See 47 CFR § 51.701(a) (“The provisions of this subpart apply to reciprocal compensation for transport and termination of local telecommunications traffic between LECs and other telecommunications carriers.”). LECs that originate or terminate long-distance calls continue to be compensated with “access charges,” as they were before the 1996 Act. Unlike reciprocal compensation, these access charges are not paid by the originating LEC. Instead, the long-distance carrier itself pays both the LEC that originates the call and links the caller to the long distance network, and the LEC that terminates the call. See In the Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 11 FCC Red 15499, 16013 (¶ 1034) (1996) (“Local Competition OrdeP’). The present case took the Commission beyond these traditional telephone service boundaries." }, { "docid": "9853407", "title": "", "text": "contrary to law. The FCC made a reasonable policy determination that collocation was a sufficient proxy for market power in determining whether to grant pricing flexibility to LECs and sufficiently explained the basis for its decision to grant immediate pricing flexibility for some services. For these reasons, we uphold the FCC’s order and deny the petitions for review. I. Background A. Legal and Regulatory Context In recent years, the FCC has sought to facilitate greater competition in the provision of both long-distance and local telephone service. See, e.g., AT&T v. FCC, 220 F.3d 607 (D.C.Cir.2000); Bell Atl. Tel. Cos. v. FCC, 79 F.3d 1195 (D.C.Cir.1996); Nat’l Rural Telecom Ass’n v. FCC, 988 F.2d 174 (D.C.Cir.1993). Competition for telephone services, where it exists, serves the FCC’s statutory goal of ensuring fair and reasonable prices for telecommunications services. Therefore, as telephone markets become more competitive, the FCC has lessened regulatory control over those markets, including the market for interstate access services. It is within this evolving regulatory context that this case arises. 1. Interstate Access Services Local telephone service is provided by local exchange carriers. 47 U.S.C. § 153(26). Typically, one LEC is the dominant, or “incumbent,” service provider in each local area. Until relatively recently, the incumbent LECs had virtual monopolies over the provision of local phone service in their territories. Long distance service — that is, service between local access and transport areas (“LATAs”) or “InterLATA” service — is, for the most part, provided by interex-change carriers (“IXCs”), such as petitioners WorldCom and AT&T. Long distance providers are reliant upon LECs to reach their customers. When a customer makes a long distance call, the IXC must have “access” to the local networks at both the originating and receiving end of the call in order to complete the connection. Generally, the LEC connects the call from the caller to a switch or “end office,” which is in turn connected to a “serving wire center” (SWC), which is itself connected to an interconnection point, or “point of presence” (POP), with the long distance carrier. This same series of connections will also be" }, { "docid": "16957290", "title": "", "text": "requiring LECs to offer billing and collection services on terms that are “just and reasonable and [do not] unreasonably discriminate” against or in favor of any IXC. Id. at 1. Second, they asked it to “adopt a policy statement requiring all LECs to make available to IXCs the data necessary to validate calls charged to calling cards, third party-billed telephone numbers, and collect calls.” Id. at 2. (Such validation data allows an IXC to verify, for example, that the credit card account number given by a caller is valid or that the telephone number given in a third party-billed call is capable of being charged.) Third, “[t]o the degree that the relief requested herein requires that the Commission promulgate rules,” the petition asked as an alternative that the Commission commence forthwith a rulemaking proceeding proposing rules mandating LEC provision of billing and collection services and access to validation data on a just and reasonable basis to providers of operator-assisted services. Id. In response to the CNS/CompTel petition, the FCC issued a notice of proposed rule-making stating that it would not re-regulate the provision of billing and collection services, but it would make it possible for interex-change carriers to bill for operator-assisted services without the aid of the LECs. See Policies and Rules Concerning Local Exchange Carrier Validation and Billing Information for Joint Use Calling Cards, 6 F.C.C.R. 3506 (1991) (\"Notice”). Thus, while it denied the particular CNS/CompTel request, it did initiate rulemaking proceedings aimed at forcing LECs to share with IXCs both validation data and customer billing name and address (“BNA”) data. Id. at 3508. According to the Commission, disclosure of “the full component of validation data,” along with customer BNA, would “enable IXCs to independently seek reimbursement” for their services. Id. Contending that the FCC’s actions did not go far enough, CNS and NYCOM Information Services, Inc. filed these petitions to challenge that part of the Notice which denied the CNS/CompTel requests. Subsequent to the filing of these petitions, and while this case was pending, the Commission took the first step down the regulatory road it had mapped out" }, { "docid": "4327880", "title": "", "text": "LEC B, LEC A must pay LEC B for completing the call, a cost usually paid on a per-minute basis. Although § 251(b)(5) purports to extend reciprocal compensation to all “telecommunications,” the Commission has construed the reciprocal compensation requirement as limited to local traffic. See 47 CFR § 51.701(a) (“The provisions of this subpart apply to reciprocal compensation for transport and termination of local telecommunications traffic between LECs and other telecommunications carriers.”). LECs that originate or terminate long-distance calls continue to be compensated with “access charges,” as they were before the 1996 Act. Unlike reciprocal compensation, these access charges are not paid by the originating LEC. Instead, the long-distance carrier itself pays both the LEC that originates the call and links the caller to the long distance network, and the LEC that terminates the call. See In the Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 11 FCC Red 15499, 16013 (¶ 1034) (1996) (“Local Competition OrdeP’). The present case took the Commission beyond these traditional telephone service boundaries. The internet is “an international network of interconnected computers that enables millions of people to communicate with one another in ‘cyberspace’ and to access vast amounts of information from around the world.” Reno v. ACLU, 521 U.S. 844, 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Unlike the conventional “circuit-switched network,” which uses a single end-to-end path for each transmission, the internet is a “distributed packet-switched network, which means that information is split up into small chunks or ‘packets’ that are individually routed through the most efficient path to their destination.” In the Matter of Federal-State Joint Board on Universal Service, 13 FCC Red 11501, 11532 (¶ 64) (1998) (“Universal Service Report”). ISPs are entities that allow their customers access to the internet. Such a customer, an “end user” of the telephone system, will use a computer and modem to place a call to the ISP server in his local calling area. He will usually pay a flat monthly fee to the ISP (above the flat fee already paid to his LEC for use of" }, { "docid": "14719294", "title": "", "text": "aids long-distance carriers in providing differential billing treatment for subscribers, depending upon whether a subscriber calls someone with the same or a different long-distance carrier. The invention claimed in the 184 patent is designed to operate in a telecommunications system with multiple long-distance service providers. The system contains local exchange carriers (“LECs”) and long-distance service (interexchange) carriers (“IXCs”). The LECs provide local telephone service and access to IXCs. Each customer has an LEC for local service and selects an IXC, such as AT & T or Excel, to be its primary long-distance service (interexchange) carrier or PIC. IXCs may own their own facilities, as does AT&T. Others, like Excel, called “resellers” or “resale carriers,” contract with facility-owners to route their subscribers’ calls through the facility-owners’ switches and transmission lines. Some IXCs, including MCI and U.S. Sprint, have a mix of their own lines and leased lines. The system thus involves a three-step process when a caller makes a direct-dialed (1 +) long-distance telephone call: (1) after the call is transmitted over the LEC’s network to a switch, and the LEC identifies the caller’s PIC, the LEC automatically routes the call to the facilities used by the caller’s PIC; (2) the PIC’s facilities carry the call to the LEC serving the call recipient; and (3) the call recipient’s LEC delivers the call over its local network to the recipient’s telephone. When a caller makes a direct-dialed long-distance telephone call, a switch (which may be a switch in the interex-change network) monitors and records data related to the call, generating an “automatic message account” (“AMA”) message record. This contemporaneous message record contains fields of information such as the originating and terminating telephone numbers, and the length of time of the call. These message records are then transmitted from the switch to a message accumulation system for processing and billing. Because the message records are stored in electronic format, they can be transmitted from one computer system to another and reformatted to ease processing of the information. Thus the carrier’s AMA message subsequently is translated into the industry-standard “exchange message interface,” forwarded to" }, { "docid": "13119395", "title": "", "text": "(a/k/a “the last mile”). These implicit subsidies are the means by which the Commission assures the provision of universal service, for without the subsidies many customers in sparsely populated areas would be unwilling to pay the high rates necessary to cover the LECs’ cost of serving them. As detailed more fully below, and in accordance with the policy of the 1996 Act, the Commission has been attempting to make the subsidies transparent by replacing implicit subsidies with explicit subsidies. See 47 U.S.C. § 254. The order here under review is intended to be a step in that direction. When AT&T was broken up in 1984, the Commission first issued rules governing the access charges IXCs were to pay LECs for originating and terminating long-distance calls. See generally Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095 (D.C.Cir.1984). Those charges did not, however, cover the cost of the local loop, which the LECs instead recovered directly from end users through a flat fee per line called the Subscriber Line Charge (SLC); it is flat because the LEC’s cost of providing the local loop is not traffic-sensitive. See In the Matter of Access Charge Reform; Price Cap Performance Review for Local Exchange Carriers; Transport Rate Structure and Pricing End User Common Line Charges (Access Charge Reform Order) ¶ 24, 12 FCC Red 15,982, 15,998-99 (1997). Recovering the cost of the loop from end users, however, raised the prospect that customers in outlying regions, where the cost per line could be quite high, would drop their telephone service and thus compromise the objective of universal service. The Commission therefore decreed that some of the cost of the local loop would be recovered through a per-minute-use charge, known as the Carrier Common Line (CCL) charge, that IXCs would pay LECs for handling their traffic. Access Charge Reform, Order ¶¶ 37, 38, at 15,998-16,000. The Commission initially capped the SLC at $3.50 per line. Because that was significantly below the average fixed cost of the local loop, a substantial portion of the cost had to be recovered through the CCL charge, which worked" }, { "docid": "2221693", "title": "", "text": "OPINION FERNANDEZ, Circuit Judge: U.S. South Communications, Inc. (U.S. South) appeals from the judgment entered against it and in favor of GCB Communications, Inc. and Lake Country Communications, Inc. (collectively GCB) after a bench trial. At issue is whether U.S. South was required to pay GCB for completed coin-less payphone calls — dial-around calls — if U.S. South did not receive coding digits that would identify the calls as GCB payphone calls. We reverse and remand for further proceedings. BACKGROUND GCB is a payphone service provider (PSP), which owns public payphones. U.S. South is an issuer of prepaid calling cards. The disputed calls in this case were placed on GCB’s payphones using U.S. South’s calling cards. When a coinless call is made on a payphone, it is initially received by the local exchange carrier (LEC) serving that geographic region. The LEC then passes the call to an interexchange carrier (IXC), and the IXC then routes the call to the carrier that completes the call (the “completing carrier,” which in this case is U.S. South, a switch-based reseller (SBR)). For the calls at issue in this case that were completed by U.S. South, Level Three Communications (L3) was U.S. South’s IXC. Federal Communications Commission (FCC) regulations require an SBR to compensate PSPs for completed calls that were placed on their payphones. Dial-around calls are coinless calls placed at a payphone where the caller does not utilize the PSP’s chosen long distance provider, and for which the PSPs receive no compensation from the caller. U.S. South is the completing carrier when individuals place calls using its prepaid calling cards. A call is deemed completed when the called party answers the telephone. As calls are routed through the telephone communications network, the various carriers in the call path exchange information so that each carrier knows what to bill for its contribution to the completed call. U.S. South identifies- which payphones were used to place calls with its calling cards by utilizing technology called “Flex-ANI.” Every payphone is assigned an Automatic Number Identification (ANI), which is essentially its phone number. Flex-ANI is software that" }, { "docid": "4327883", "title": "", "text": "Before actually applying that analysis, the Commission brushed aside a statutory argument of the competitor LECs. They argued that ISP-bound traffic must be either “telephone exchange service,” as de fined in 47 U.S.C. § 153(47), or “exchange access,” as defined in § ^(lG). It could not be the latter, they reasoned, because ISPs do not assess toll charges for the service (see id., “the offering of access ... for the purpose of the origination or termination of telephone toll services”), and therefore it must be the former, for which reciprocal compensation is mandated. Here the Commission’s answer was that it has consistently treated ISPs (and ESPs generally) as “users of access service,” while treating them as end. users merely for access charge purposes. FCC .Ruling, 14 FCC Red at 3701 (¶ 17). Having decided to use the “end-to-end” method, the Commission considered whether ISP-bound traffic is, under this method, in fact interstate. In a conventional “circuit-switched network,” the jurisdictional analysis is straightforward: a call is intrastate if, and only if, it originates and terminates in the same state. In a “packet-switched network,” the analysis is not so simple, as “[a]n Internet communication does not necessarily have a point of ‘termination’ in the traditional sense.” FCC Ruling, 14 FCC Red at 3701-02 (¶ 18). In a single session an end user may communicate with multiple destination points, either sequentially or simultaneously. Although these destinations are sometimes intrastate, the Commission concluded that “a substantial portion of Internet traffic involves accessing interstate or foreign websites.” Id. Thus reciprocal compensation was not due, and the issue of compensation between the two local LECs was left initially to the LECs involved, subject to state commissions’ power to order compensation in the “arbitration” proceedings, and, of course to whatever may follow from the Commission’s new rule-making on its own possible ratesetting. * * * The issue at the heart of this case is whether a call to an ISP is local or long-distance. Neither category fits clearly. The Commission has described local calls, on the one hand, as those in which LECs collaborate to complete a" }, { "docid": "2221694", "title": "", "text": "switch-based reseller (SBR)). For the calls at issue in this case that were completed by U.S. South, Level Three Communications (L3) was U.S. South’s IXC. Federal Communications Commission (FCC) regulations require an SBR to compensate PSPs for completed calls that were placed on their payphones. Dial-around calls are coinless calls placed at a payphone where the caller does not utilize the PSP’s chosen long distance provider, and for which the PSPs receive no compensation from the caller. U.S. South is the completing carrier when individuals place calls using its prepaid calling cards. A call is deemed completed when the called party answers the telephone. As calls are routed through the telephone communications network, the various carriers in the call path exchange information so that each carrier knows what to bill for its contribution to the completed call. U.S. South identifies- which payphones were used to place calls with its calling cards by utilizing technology called “Flex-ANI.” Every payphone is assigned an Automatic Number Identification (ANI), which is essentially its phone number. Flex-ANI is software that enables the LEC to determine whether a particular call was originated from a payphone by matching the ANI of the phone from which the call is made against a database of payphone ANIs. If the ANI is identified as a payphone ANI, the LEC, using Flex-ANI, will generate a two digit code of either 27, 29, or 70 and attach that code to the payphone’s ANI at the LEC’s switch. The codes are not actually attached to the ANI at the payphone itself. Flex-ANI has become the standard method for determining whether a call originated from a payphone. In order for the system to function properly, the originating LEC and each subsequent carrier must have Flex-ANI capability. IXCs, like L3, have an obligation to provide all of the call data they receive at their switches, without manipulation, to SBRs, like U.S. South, including the Flex-ANI coding digits if received. If L3 does not receive Flex-ANI digits when the call is passed to it, neither will U.S. South. When U.S. South completes a call, the data" }, { "docid": "14592441", "title": "", "text": "claims. Nor is a referral necessary at this time with regard to the Communications Act and quantum meruit claims. I. BACKGROUND Broadvox is a local exchange carrier (“LEC”) that bills AT & T for two “access services” for which AT & T does not believe it should be charged. The first disputed access service is provided when AT & T customers place prepaid calling card (“PPCC”) calls by dialing telephone numbers that Broadvox provides, which AT & T then transmits to a Broadvox facility, from which Broadvox and its PPCC provider partner “route[] them to a calling ‘platform,’ ” where they terminate in internet protocol (“IP”) format. AT & T Br. 3; see Broadvox Supp. Reply 13. At that point, the customer dials a second number and an unknown third-party network delivers the call its recipient. AT & T Br. 3. This is called a “two-stage call,” and the issue is whether Broadvox may bill AT & T access charges for “routing the call to its routing partner” and then “terminating” the call by routing it to the platform, when Broadvox and its PPCC provider partner deliver the call to the platform at the end of the first stage but not to its ultimate recipient. Id. at 3-4; see Broadvox Resp. 5; Broadvox Supp. Reply 13-14. The second disputed service is provided when Broadvox receives calls in IP format from AT & T, via a Voice over Internet Protocol (‘VoIP”) provider that Broadvox selects, and then “hand[s] off the call to an over-the-top VoIP provider” that “dump[s] the IP packets for the call ... into the public Internet.” AT & T Br. 6. An unaffiliated internet service provider then transfers the call “to the neighborhood IP broadband facilities used by the called party’s broadband service provider,” and that provider delivers the call to its recipient. Id. This is called “over-the-top VoIP traffic.” The dispute, similar to the two-stage call dispute, is whether Broadvox may bill AT & T for an “ ‘end office switching’ rate element,” even though Broadvox is not “involved in the ‘last-mile’ delivery of the call.” Id." }, { "docid": "14592440", "title": "", "text": "present issues that fall within the purview of the Federal Communications Commission (the “FCC” or the “Commission”). In a July 2, 2014 Memorandum Opinion and Order, I ordered the parties to brief the issue of primary jurisdiction. ECF Nos. 40 & 41. The briefing is complete, and Broadvox also has filed a Motion Requesting the Court to Establish a Summary Judgment Briefing Schedule and Memorandum in Support (“Broadvox Supp.”), based on its contention that the FCC “issued an order on February 11, 2015 fully resolving those issues [that may have been appropriate for referral to the FCC] and obviating any perceived need for a referral,” ECF Nos. 64 & 64-1. AT & T has filed a response (“AT & T Supp. Resp.”), ECF No. 65, and Broadvox has filed a reply (“Broadvox Supp. Reply”), ECF No. 66. Because the FCC already has provided sufficient guidance on any issues that otherwise would have been appropriate for referral, I conclude that a primary jurisdiction referral is not necessary with regard to the issues raised in the tariff claims. Nor is a referral necessary at this time with regard to the Communications Act and quantum meruit claims. I. BACKGROUND Broadvox is a local exchange carrier (“LEC”) that bills AT & T for two “access services” for which AT & T does not believe it should be charged. The first disputed access service is provided when AT & T customers place prepaid calling card (“PPCC”) calls by dialing telephone numbers that Broadvox provides, which AT & T then transmits to a Broadvox facility, from which Broadvox and its PPCC provider partner “route[] them to a calling ‘platform,’ ” where they terminate in internet protocol (“IP”) format. AT & T Br. 3; see Broadvox Supp. Reply 13. At that point, the customer dials a second number and an unknown third-party network delivers the call its recipient. AT & T Br. 3. This is called a “two-stage call,” and the issue is whether Broadvox may bill AT & T access charges for “routing the call to its routing partner” and then “terminating” the call by routing" }, { "docid": "16772413", "title": "", "text": "paid by its customers. (Tr. 7/2/09 at 29, 34.) The LECs conducted a “true-up” on a quarterly basis, reconciling the reserves with the amounts actually paid by the customers, thereby establishing PT-1 Long Distance’s actual bad debt. (Ex. 2; Tr. 7/2/09 at 31, 34, 38-39, 99.) After the true-up was completed, PT-1 Long Distance would either receive additional funds if the amount reserved exceeded the amounts collected from the end users, or money would be deducted from amounts sent to PT-1 Long Distance if the bad debts exceeded the reserved amount. (Tr. 7/2/09 at 38, 99-100, 107.) PT-1 Long Distance did not have a direct relationship with the LEC or its customers, and relied on the information received through the true-up process, as transmitted by the Intermediary, in order to determine its actual bad debt from operations. (Tr. 7/2/09 at 30-32.) In 2002, PT-1 implemented a direct-bill program in order to recover payment of the unbillables directly from the end users. (Tr. 7/2/09 at 54, 70-71, 73, 75, 77, 79.) PT-1 did not seek to collect payment from end users on account of the up-front rejects. (Tr. 7/2/09 at 73, 79.) PT-1 collected approximately $3 million through this program, and approximately $9-10 million was not collected. (Tr. 7/2/09 at 55, 78, 117.) Additionally, PT-1 around that time began to provide services directly to customers, without the use of the Intermediary or the LEC. (Tr. 7/2/09 at 78, 82.) II. PT-1 Communications PT-1 Communications was in the business of issuing pre-paid phone cards. (Tr. 7/2/09 at 66.) A pre-paid phone card was similar to a debit card: a purchaser would buy a pre-paid calling card in a specific amount, and the amount on the card would be reduced as the purchaser made phone calls charged to that card. (Tr. 7/2/09 at 66-67.) PT-1 Communications sold its assets, which consisted of receivables and inventory, to IDT in 2001. (Tr. 7/2/09 at 67; Tr. 8/26/09 at 21-22.) Legal Standard In an action to obtain a tax refund, the taxpayer bears the burden of proving the exact amount the taxpayer is entitled to recover." }, { "docid": "23020666", "title": "", "text": "levels. Concluding that the PUC and the district court had jurisdiction to adjudicate the merits of this case, and agreeing with their dispositions of it, we affirm. I. FACTS AND PROCEEDINGS In the interest of opening previously monopolistic local telephone markets to competition, the Federal Telecommunications Act of 1996 (the “Act”) requires all telecommunications carriers to interconnect their networks so that customers of different carriers can call one another. 47 U.S.C. § 251(a)(1) (West Supp.1999). Both Southwestern Bell and Time Warner are local exchange carriers (“LECs”). Having historically held monopolies in the subject markets, Southwestern Bell is the incumbent LEC or ILEC, and Time Warner is a competing LEC or CLEC. The Act requires ILECs to negotiate reciprocal compensation arrangements or interconnection agreements with CLECs to establish the terms by which they will compensate each other for the use of the other’s networks. 47 U.S.C. § 251(b)(5), (c)(1). When an LEC’s customer places a local call to a customer of another LEC, the LEC whose customer initiated the call compensates the receiving LEC for transporting and terminating the call through its network. See 47 U.S.C. § 251(b)(5); 47 C.F.R. § 51.701(e) (1998). In two reciprocal compensation agreements (one executed in 1996 and the other in 1997), Time Warner and Southwestern Bell agreed to base reciprocal compensation on minutes of use. That way each party would pay the other a fixed rate for each minute that one of its customers used the other’s network for “Local Traffic.” The instant dispute originated when Southwestern Bell refused to pay Time Warner reciprocal compensation for modem calls that Southwestern Bell’s customers made to Time Warner’s ISP customers. (ISPs typically purchase local business phone service from LECs for a flat monthly fee that allows unlimited incoming calls.) An Internet user can, through use of a modem, dial an ISP’s local phone number without incurring long-distance tolls, but can nevertheless access websites around the globe. Southwestern Bell based its refusal to pay reciprocal compensation to Time Warner on the theory that, because modem calls to ISPs involve the continuous transmission of information across state lines, such" }, { "docid": "16957289", "title": "", "text": "the call, the independent LEC will bill the call on its customer’s regular bill, and AT & T will receive reimbursement, less a collection fee, from the LEC. But if that same person walks into a booth connected, say, to petitioner Capital Network Systems (“CNS”) and seeks to place the same collect call, in many instances the independent LEC will refuse to bill and collect for the call as it would have for AT & T. Under such circumstances, CNS must either transfer the call to AT & T for completion or complete the call itself and then try to bill the party who accepted it. On June 1,1989, CNS and the Competitive Telecommunications Association (“Comp-Tel”), an industry group, filed a petition with the FCC asking it to consider three actions. Petition to Mandate Availability of Essential Billing and Collection Services and Access to Call Validation Data on a Just and Reasonable Basis or in the Alternative Petition for Rulemaking dated June 1, 1989 (“CNS/CompTel petition”). First, they asked the Commission to “adopt a policy” requiring LECs to offer billing and collection services on terms that are “just and reasonable and [do not] unreasonably discriminate” against or in favor of any IXC. Id. at 1. Second, they asked it to “adopt a policy statement requiring all LECs to make available to IXCs the data necessary to validate calls charged to calling cards, third party-billed telephone numbers, and collect calls.” Id. at 2. (Such validation data allows an IXC to verify, for example, that the credit card account number given by a caller is valid or that the telephone number given in a third party-billed call is capable of being charged.) Third, “[t]o the degree that the relief requested herein requires that the Commission promulgate rules,” the petition asked as an alternative that the Commission commence forthwith a rulemaking proceeding proposing rules mandating LEC provision of billing and collection services and access to validation data on a just and reasonable basis to providers of operator-assisted services. Id. In response to the CNS/CompTel petition, the FCC issued a notice of proposed rule-making" }, { "docid": "16772414", "title": "", "text": "collect payment from end users on account of the up-front rejects. (Tr. 7/2/09 at 73, 79.) PT-1 collected approximately $3 million through this program, and approximately $9-10 million was not collected. (Tr. 7/2/09 at 55, 78, 117.) Additionally, PT-1 around that time began to provide services directly to customers, without the use of the Intermediary or the LEC. (Tr. 7/2/09 at 78, 82.) II. PT-1 Communications PT-1 Communications was in the business of issuing pre-paid phone cards. (Tr. 7/2/09 at 66.) A pre-paid phone card was similar to a debit card: a purchaser would buy a pre-paid calling card in a specific amount, and the amount on the card would be reduced as the purchaser made phone calls charged to that card. (Tr. 7/2/09 at 66-67.) PT-1 Communications sold its assets, which consisted of receivables and inventory, to IDT in 2001. (Tr. 7/2/09 at 67; Tr. 8/26/09 at 21-22.) Legal Standard In an action to obtain a tax refund, the taxpayer bears the burden of proving the exact amount the taxpayer is entitled to recover. United States v. Janis, 428 U.S. 433, 440, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) (citing Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293 (1932)); Wells Fargo & Co. v. United States, 91 Fed.Cl. 35, 75 (Fed.C1.2010). Taxpayers seeking to deduct a net operating loss “bear the burden of establishing both the existence of the [net operating loss] and the amount of any [net operating loss].” Green v. Comm’r, 86 T.C.M.(CCH) 273, 2003 WL 21940722, at *3 (T.C.2003). This burden must be satisfied by the preponderance of the evidence. Wells Fargo, 91 Fed.Cl. at 75. A deduction of a net operating loss “is a matter of legislative grace; it is not a matter of right.” Green, 2003 WL 21940722, at *3 (citing United States v. Olympic Radio & Television, Inc., 349 U.S. 232, 235, 75 S.Ct. 733, 99 L.Ed. 1024 (1955)). See also INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84, 112 S.Ct. 1039, 117 L.Ed.2d 226 (1992). A claim for a refund must be substantiated by “something other than tax" }, { "docid": "16957287", "title": "", "text": "of the Act. Although the Commission found that it could perpetuate its regulatory regime on the authority of its “ancillary jurisdiction” under Title I, it declined to do so. See id. at 1169-71. Having established that “there is sufficient competition to allow market forces to respond to excessive rates or unreasonable billing,” the FCC concluded that “no statutory purpose would be served by continuing to regulate billing and collection service.” Id. at 1170. In promulgating the Detariffing Order, the Commission’s focus was almost exclusively on the market for “subscriber,” or “1 + ,” long-distance service, for which tolls are charged to the account of the telephone that originates the call. When the Detariffing Order was issued, competition in the other segment of the long-distance market, that for “operator-assisted,” or “0 +,” service was still in its infancy. Operator-assisted calling, as the term is used here, includes all calls for which tolls are not automatically charged to the owner of the line originating the call, whether or not an actual operator assists in the call’s completion. Credit card, collect, and bill-to-third party calls are all examples of operator-assisted services. A surge of competition in the operator-assisted segment of the market followed in the wake of the AT & T breakup, and, amidst this surge, several interexchange carriers (“IXCs”) became convinced that certain local exchange carriers (“LECs”) were subjecting them to exorbitant rates and discrimination in billing and collecting for operator-assisted calls. In particular, these IXCs were concerned with the practices of the “independent” LECs who, because they had not been affiliated with AT & T or GTE, were not bound by the nondiscrimination strictures of the two consent decrees. The independents number about 1,400, and they control approximately 10 percent of the local exchange market. Many independent LECs have continued to provide billing and collection services to AT & T while refusing to provide them to other interexchange carriers. Thus, if a person walks into a telephone booth connected to AT & T and places a collect call to a number assigned by an independent LEC, AT & T will complete" }, { "docid": "14592460", "title": "", "text": "using the service of another provider, the PPCC provider.” Id. at 13. Broadvox seeks compensation for the first call only, which it insists “terminates in IP protocol to the PPCC platform.” Id. Broadvox argues that the VoIP symmetry rule supersedes all precedent that it is not .entitled to charge for an IP provider terminating the call. Broadvox Resp. 9-10. AT & T contends that these charges are distinct from the VoIP access charges that the 2015 Declaratory Ruling addressed, “and nothing in the Declaratory Ruling even purports to address two-stage, prepaid calling card calls.” AT & T Supp. Resp. 7. AT & T argues that, even if Paragraph 21 of the 2015 Declaratory Ruling states that the VoIP Symmetry Rule applies to services provided through partnerships with all types of VoIP providers, it only applies when “either Broadvox or its purported VoIP partner ... provide[s] ‘comparable’ service to traditional access services charged by local exchange carri ers,” that is, when Broadvox or its VoIP partner provides the equivalent of a terminating service. AT & T Supp. Resp. 8. Indeed, in stating that “[competitive LECs may partner with a variety of VoIP partners and collect symmetrical access charges for covered services,” the FCC conditioned its ruling: The LECs may collect access charges “as long as one of the partners jointly providing a call delivers the end office switching functionality.” In re Connect Am. Fund, 2015 WL 628983, ¶ 21 (emphasis added). According to AT & T, for PPCC services, neither the services that Broadvox provides nor those that its VoIP partners provide are “ ‘comparable’ to the termination of a call to a called party,” which is a service that “unaffiliated entities” provide in the second half of the call, and therefore Broadvox cannot impose terminating charges for its PPCC services. AT & T Supp. Resp. at 8-9. Thus, the issue is whether a PPCC call is a single (but two-phased) call for which Broadvox only participates in the first phase and consequently does not provide terminating services, or two distinct calls, such that Broadvox provides terminating services for the initial" }, { "docid": "9853408", "title": "", "text": "telephone service is provided by local exchange carriers. 47 U.S.C. § 153(26). Typically, one LEC is the dominant, or “incumbent,” service provider in each local area. Until relatively recently, the incumbent LECs had virtual monopolies over the provision of local phone service in their territories. Long distance service — that is, service between local access and transport areas (“LATAs”) or “InterLATA” service — is, for the most part, provided by interex-change carriers (“IXCs”), such as petitioners WorldCom and AT&T. Long distance providers are reliant upon LECs to reach their customers. When a customer makes a long distance call, the IXC must have “access” to the local networks at both the originating and receiving end of the call in order to complete the connection. Generally, the LEC connects the call from the caller to a switch or “end office,” which is in turn connected to a “serving wire center” (SWC), which is itself connected to an interconnection point, or “point of presence” (POP), with the long distance carrier. This same series of connections will also be made at the receiving end of the phone call — from POP to SWC to switch to call recipient. LECs charge the IXCs for providing this “access service” in accordance with 47 C.F.R. Part 69. IXCs then bill customers directly for long distance calls. There are two types of access service: “switched access” and “special access.” Switched access service requires the creation of a connection between the caller and the long distance company on a “eall-by-call” basis. This entails (1) a connection between the caller and a local LEC switch, (2) a connection from the LEC switch to the SWC (“interoffice transport”), and (3) an entrance facility which connects the SWC and the long distance company’s POP. Switched access can either be dedicated to a particular IXC (“dedicated transport” or “direct trunked transport”) or shared among IXCs. “Special access” service, on the other hand, uses dedicated lines between the customer and the IXC’s local POP. Switched access is used by most residential customers. Most users of special access services are companies with high call volumes." }, { "docid": "4834178", "title": "", "text": "the ICA that exempt intra-MTA, interexchange traffic from reciprocal compensation where an IXC is involved. Qwest and the PUC do not dispute that intra-MTA traffic exchanged between Qwest and Western is “local traffic” subject to reciprocal compensation. Rather, they contend, and the district court agreed, that the involvement of an IXC in the transmission of such traffic trumps the intra-MTA nature of the call, taking it out of the reciprocal compensation regime. We conclude that the arbitrator, PUC, and district court erred in determining that the involvement of an IXC altered the parties’ obligation to pay reciprocal compensation for telecommunications traffic that originates and terminates within the same MTA. The Act requires that reciprocal compensation arrangements apply to the “transport and termination of telecommunications” between LECs. 47 U.S.C. § 251(b)(5). The regulations extend this duty to telecommunications traffic exchanged between LECs and CMRS providers. 47 C.F.R. § 20.11(b), (c). In the regulation addressing the scope of the transport and termination pricing rules, the FCC distinguishes between traffic exchanged between a LEC and a CMRS provider and traffic exchanged between a LEC and a non-CMRS provider. See 47 C.F.R. § 51.701(b). In the former situation, reciprocal compensation applies to all traffic exchanged “that, at the beginning of the call, originates and terminates within the same Major Trading Area....” Id. § 51.701(b)(2). In the latter situation, reciprocal compensation applies to all traffic exchanged except “telecommunications traffic that is interstate or intrastate exchange access, information access, or exchange services for such access.... ” Id. § 51.701(b)(1). Traffic carried by an IXC, which is access-based rather than reciprocal-compensation-based, falls within this regulatory exception to the reciprocal compensation rules. See In re Developing a Unified Intercarrier Compensation Regime, 20 FCC Red. 4685, 4687-88, ¶5 (2005) (“Federal and state access charge rules govern the payments that [IXCs] and [CMRS] providers make to local exchange carriers ... that originate and terminate long-distance calls, while the reciprocal compensation rules established under section 251(b)(5) of the Act generally govern the compensation between telecommunications carriers for the transport and termination of calls not subject to access charges.”). Qwest and the" }, { "docid": "19957463", "title": "", "text": "the ‘coin call,’ in which the caller inserts a coin directly into the payphone before making the call; the rates for coin calls are set by State commissions.” Sprint Corp. v. FCC, 315 F.3d 369, 371 (D.C.Cir.2003). Increasingly common, however, is “the second type of call — ‘coin-less calls’ — which a caller places by using a service such as directory assistance, operator service, an access code, or a subscriber 800 number.” Id. The rules governing this second category of calls are at issue here. To ensure payphone service providers (“PSPs”) are compensated for these dial-around “calls to 800 numbers or 10XXX numbers that the caller uses to reach the long-distance carrier of his choice,” and thus to encourage the availability of payphones, “Congress enacted § 276 of the Telecommunications Act of 1996.” III. Pub. Telecomm. Ass’n v. FCC, 117 F.3d 555, 559 (D.C.Cir.1997) (citing 47 U.S.C. § 276). The FCC must “establish a per call compensation plan to ensure that all payphone service providers are fairly compensated for each and every completed intrastate and interstate call using their payphone....” 47 U.S.C. § 276(b)(1)(A). The concept is simple: Telecommunications carriers must compensate PSPs for calls made from payphones with calling cards. Application, alas, is complicated, because long-distance calls often involve multiple carriers. For instance, a local exchange carrier (“LEC”) initially might receive a call, and then route it to a non-LEC — “typically an interexchange carrier (TXC’)[ ] ... such as Sprint, AT & T, and WorldCom” — that then transmits the call to yet another carrier. Sprint Corp., 315 F.3d at 371. “If the recipient of the call is a customer of the IXC, the IXC will simply transmit the call to the LEC that serves the customer,” but “[i]f the call recipient is not a customer of the IXC, ... the IXC transfers the call to a ‘reseller’ of the IXC’s services.” Id. We have noted that “[t]wo types of resellers exist. The first, known as switch-less resellers, do not possess their own switching facilities and must rely on an IXC to perform the switching and transmission functions" } ]

[ { "docid": "22631969", "title": "", "text": "however, is an attempt to sweep into the ambit of their right to sue in federal court if they are denied an equal opportunity to nominate candidates under § 101 (a)(1), a right to sue if they are not allowed to nominate anyone they choose regardless of his eligibility and qualifications under union-restrictions. But Title IV, not Title I, sets standards for . eligibility and qualifications of candidates and officials and provides its own separate and ..different administrative and judicial procedure for challenging those standards. And the equal-rights language of § 101 (a)(1) would have to be stretched far beyond its normal meaning to hold that it guarantees members not just a right to “nominate candidates,” but a right to nominate anyone, without regard to valid union rules. All that §101 (a)(1) guarantees is that “Every member of a labor organization shall have equal rights and privileges ... to nominate candidates, to vote in elections or referendums of the labor organization . . . and to participate in the delibera tions and voting . . . subject to reasonable rules and regulations in such organization’s constitution and bylaws.” Plainly, this is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote. And Congress carefully prescribed that even this right against discrimina.tion is “subject to reasonable rules and regulations” by the union. The complaining union members here have not been discriminated against in any way and have been denied no privilege or right to vote or nominate which the union has granted to others. They have indeed taken full advantage of the uniform rule limiting nominations by nominating themselves for office. It is true that they were denied their request to be candidates, but that denial was not a discrimination against their right to nominate, since the same qualifications were required equally of all members. Whether the eligibility requirements set by the union’s constitution and bylaws were reasonable and valid is a question separate and distinct from whether the right to nominate on an equal basis given by" } ]

[ { "docid": "836618", "title": "", "text": "law. We are concerned with federal, not state, law and we must view § 301 in the light of its underlying purpose to provide a federal remedy in eases where, because of difficulties in suing labor associations, other remedies were inadequate. See Lincoln Mills, supra, 353 U.S. at 453-454, 77 S.Ct. 912. A holding that the word “contracts” as used in § 301(a) encompasses union constitutions would open the doors of the federal courts to every dispute between a parent union and a local union over the meaning and effect of the union constitution. If Congress intended to turn over to the federal courts the control and supervision of internal union affairs which have no external application to industrial peace or to collective bargaining agreements we believe that Congress would have said so explicitly. We agree with the Ninth Circuit that it was not the intent of Congress for the courts to use the LMRA to police intra-union problems. Hotel & Restaurant Employees Local. 400 v. Svacek, 9 Cir., 431 F.2d 705, 706. It follows that § 301 (a) does not confer federal jurisdiction over the case before us. The district court also held that it had jurisdiction under § 102 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 412. That section gives federal jurisdiction over a suit for the deprivation of “equal rights” guaranteed by § 101(a)(1), 29 U.S.C. § 411(a)(1) which reads: “Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organizations, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.” Section 102 does not confer jurisdiction unless § 101(a)(1) has been violated. Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 13 L.Ed.2d 190. The “equal rights” guaranteed are subject to the reasonable rules and regulations in the union’s constitution and bylaws. No claim is presented of any discrimination at any election. The" }, { "docid": "9588698", "title": "", "text": "27 L.Ed.2d 53 (1970), supports our conclusion. In that case, the plaintiff left full-time employment as a printer to become a technical writer. His printers’ local reclassified him as a member “not working at the trade.” This change resulted in Williams’ loss of voting rights and priority. The court rejected Williams’ challenge to the reclassification and held that the union’s action was “reasonable” within the meaning of section 101(a)(1). The question is the reasonableness of the International’s regulation prohibiting a member classified as “not at the trade” from voting on wage scales. The evidence for the Unions was that those not primarily dependent on the printing business for their livelihood, a characteristic found in the not-at-the-trade classification, do not have the vital interest in wage scales which is present in those who are first and foremost printers. We believe that the regulation is reasonable and does not violate the Act. 423 F.2d at 1298. Finally, we find nothing in the LMRDA or its legislative history to indicate that Congress intended the “has fulfilled the requirements of membership” language of section 3(o) to be a guarantee of continued membership to ex-employees like the appellants. On the contrary, the floor debates establish conclusively that Congress was determined to preserve the right of a labor organization “to prescribe its own rules with respect to the acquisition and retention of membership.” 29 U.S.C. § 158(b)(1)(A) (emphasis added). The judgment below is affirmed. . The International’s membership guidelines distinguish between voluntary resignation and involuntary loss of employment by lay-off or discharge. For example, an employee who is laid off subject to recall by his employer remains a union member “in good standing” for the first twelve months of the lay-off. Thereafter, he is considered a member “not in good standing” until his recall rights expire. A discharged employee remains a “member” as long as a grievance against the discharge is pending. It is important to note that the present case deals only with the membership status of voluntary resignations. . Steelworkers locals apparently retain a modicum of discretion in their implementation of the International’s policy." }, { "docid": "15655885", "title": "", "text": "made. The business agent, by signing the agreement without authorization, sparked a dispute solely between the employees and their respective unions. There has been no suggestion that Redrock, or any of the unions that had already agreed to commence work on the Olinkraft job, in any way prompted the international’s president to urge ratification of the agreement. We do not decide whether such a scenario would have been sufficient to bring the matter within the context of collective bargaining, and out of the realm of a strictly intraunion squabble. We conclude the present controversy does not have a significant impact on external labor-employer relationships and therefore cannot form the basis of jurisdiction under section 301. The district court properly denied jurisdiction under that section. Sections 101 and 102: Labor Management Reporting and Disclosure Act The next question is whether plaintiffs have alleged a sufficient violation of section 101(a)(1) of the Labor-Management Reporting and Disclosure Act, 29 U.S.C.A. § 411(a)(1), to confer jurisdiction under section 102 of the Act, 29 U.S.C.A. § 412. Section 101(a)(1) provides, Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws. Plaintiffs claim their equal rights to vote were denied by virtue of the business agent’s patent disregard of the two referen-da in which the proposed project agreement had been unanimously rejected. The word “referendum” in section 101(a)(1) has been held to be sufficiently broad “to guarantee to all union members a right to vote on a union contract which any of them enjoy.” Trail v. International Brotherhood of Teamsters, 542 F.2d at 966. The Supreme Court held in Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964), however that the guarantee of “equal rights” in section 101(a)(1) forbids only unequal treatment as between members of a union. Thus, the issue under" }, { "docid": "9336603", "title": "", "text": "H ARLINGTON WOOD, Jr., Circuit Judge. Congress passed the Labor-Management Reporting and Disclosure Act, popularly known as the Landrum-Griffin Act, 29 U.S.C. §§ 411-15, to protect individual members of labor unions from the unilateral, and sometimes repressive, actions of the union leadership. Finnegan v. Leu, - U.S. -, -, 102 S.Ct. 1867, 1873, 72 L.Ed.2d 239 (1982); Rosario v. Amalgamated Ladies’ Garment Cutters Union, Local 10, 605 F.2d 1228, 1238-39 (2d Cir. 1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980); Navarro v. Gannon, 385 F.2d 512, 518 (2d Cir. 1967), cert. denied, 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294 (1968). The Act secures union members the right to vote and participate in union elections, 29 U.S.C. § 411(a)(1), to freely meet, assemble, and discuss union affairs without interference from union leaders, 29 U.S.C. § 411(a)(2), and to control by ballot the levy of union dues and special assessments, 29 U.S.C. § 411(a)(3). The Act also guarantees that no member “may be fined, suspended, expelled, or otherwise disciplined . . . unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; [and] (C) afforded a full and fair hearing.” 29 U.S.C. § 411(a)(5). Section 102 of the Act, 29 U.S.C. § 412, creates a cause of action for union members alleging a denial of rights under the Act. See Finnegan, -U.S. at - n.10, 102 S.Ct. at 1872 n.10. Congress empowered the district court to grant equitable or monetary relief. The plaintiff, Raymond Curtis, filed this action under section 102 against Local 125 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators (“Local 125”). Curtis was expelled from the union on a variety of charges after a disciplinary hearing before the full union membership. The membership voted by approximately a two to one margin to convict Curtis and rescind his membership. Curtis alleges the proceedings were inadequate under section 411(a)(5) and seeks compensatory damages and reinstatement of his membership status. I. The controversy began in 1975 when the complainant, George" }, { "docid": "3321687", "title": "", "text": "L.Ed.2d 563 (1965). . Section 101(a) (5) of the Act, 73 Stat. 523, 29 U.S.O.A. § 411(a) (5) provides: “Safeguards against improper disciplinary action.- — -No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.” . Title 1, § 102, 73 Stat. 523, 29 U.S.O.A. § 412 provides: “Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. * * * ” . Section 401(h) 73 Stat. 533, provides: “If the Secretary [of Labor], upon application of any member of a local labor organization, finds after hearing in accordance with the Administrative Procedure Act that the constitution and bylaws of such labor organization do not provide an adequate procedure for the removal of an elected officer guilty of serious misconduct, such officer may be removed, for cause shown and after notice and hearing, by the members in good standing voting in a secret ballot conducted by the officers of such labor organization in accordance with its constitution and bylaws insofar as they are not inconsistent with the provisions of this title.” We also note that this subsection by its terms, as does § 402, 73 Stat. 534, 29 U.S.C.A. § 482, dealing with enforcement of § 401, directs aggrieved union members to seek relief from the Secretary of Labor rather than by a civil action under the LMRDA. See Oalhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). . Navarro v. Gannon, 385 F.2d 512, 516 n. 6 & 520 (2 Cir. 1967), cert. den. 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294 (1968). See also Yanity v. Benware, 376 F.2d 197 (2 Cir. 1967), cert. den. 389 U.S." }, { "docid": "21892437", "title": "", "text": "were inserted into the printed bylaws that had not been approved by the membership. These three paragraphs were eventually ordered excised by the International Union. Plaintiffs argue that the mailing procedure violated 29 U.S.C. § 411(a)(1) when it failed to conform to the referendum requirements in effect at the time of the vote. Section 411(a)(1) states that “[e]very member of a labor organization shall have equal rights and privileges within such organization ... to vote in elections or referendums of the labor organization . . . subject to reasonable rules and regulations in such organization’s constitution and bylaws.” The District Court properly concluded that there was no discrimination between members of the union and no denial of the equal right to vote. Section 411(a)(1) was not designed to grant federal courts “jurisdiction to enforce union constitutions and by-laws across the board.” Bunz v. Moving Picture Mach. Operators’ Protective Union, 567 F.2d 1117, 1121 n.17 (D.C.Cir. 1977). The statute, rather, is “a command that members and classes of members shall not be discriminated against in their right to nominate and vote.” Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964). Violation of the constitution and bylaws would also be a violation of § 411(a)(1) when the variance or irregularity results in discriminatory deprivation of an individual’s right to cast a meaningful vote. Blanchard v. Johnson, 532 F.2d 1074 (6th Cir.), cert. denied, 429 U.S. 869, 97 S.Ct. 180, 50 L.Ed.2d 149 (1976). The failure to have members present or to place registration stubs on the ballots, however, did not result in discrimination. There is no cognizable § 411(a)(1) violation. In a pendent state law claim plaintiffs argue that under Ohio law a constitution and bylaws of an unincorporated association are contracts between the members of the association. Jacobs v. Cook, 123 N.E.2d 276 (Ohio, P1.1953), aff’d, 123 N.E.2d 282 (Ohio App.1954), appeal dism’d, 162 Ohio St. 319, 123 N.E.2d 283 (1954). Jacobs allowed relief when the constitution and bylaws of the union were “materially and substantially” amended without vote of the membership. 123 N.E.2d at" }, { "docid": "2823128", "title": "", "text": "late 1982 and early 1983 garnered signatures of 433 members who lived over 250 miles from Chicago (Pltf. Br. 11). An affidavit submitted by one plaintiff contained a summary solely of United Parcel Service employees’ (and Union members’) geographic dispersion and revealed that 3,100 employees live more than 100 miles from Chicago, and 1,900 members live 150 miles or more from Chicago, 390 members more than 200 miles from Chicago, and 270 members more than 250 miles from Chicago. Defendant admitted below that the Union members living more than 150 miles from Chicago make up approximately eighteen percent of the Local 710 membership (R. Item 25 at 4; Defendant’s Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment). In summary, this case involves very large numbers of Local 710 members who are required to travel great distances to vote on proposed amendments to the Union ByLaws. The district court based its grant of summary judgment for defendant on plaintiffs’ failure to demonstrate that the Union’s policy in question has been applied in a discriminatory fashion (district court opinion at 4-5; R. Item 29). The court also denied plaintiffs’ motion for summary judgment. II. Section 101(a)(1) of the LRMDA guarantees in pertinent part that “Every member of a labor organization shall have equal rights and privileges within such organization * * * to vote in elections or referendums of the labor organization * * * and to participate in the deliberations and voting upon the business of such [Union membership] meetings, subject to reasonable rules and regulations in such organization’s constitution and by-laws.” Section 101(b) further provides that constitutional or bylaw provisions inconsistent with subsection (a) shall be of no force or effect. The purpose of the Act was to assure the “full and active participation by the rank and file in the affairs of the union.” American Federation of Musicians v. Wittstein, 379 U.S. 171, 182-183, 85 S.Ct. 300, 307, 13 L.Ed.2d 214 (1964); see Navarro v. Gannon, 385 F.2d 512, 518 (2d Cir.1967), certiorari denied, 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294. In view of the fact" }, { "docid": "20331483", "title": "", "text": "enforced. The union action did not deprive plaintiff of any right guaranteed by the Act. Loss of priority also meant that plaintiff was no longer entitled to membership and voting rights in his local chapel. The chapel is a subdivision of the Local Union and is found in each business which has a contract with the Local. Section 402(i) defines a labor organization as one “which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, * * These functions are performed by the Local, not by the chapels. They appear to exist mainly to collect dues and keep earning records, for the benefit of the Local. In our opinion, a chapel is not a labor organization within the meaning of the Act and the deprivation of rights which pertain thereto does not violate the Act. Section 411(a) (3) provides that dues shall not be increased and assessments shall not be levied except by vote of the members. Plaintiff says that the assessments against him as a not-at-the-trade member violate that section. The constitution of the International provides that those classified as working at the trade shall pay 2y¿% of their total earnings as contributions to the old age and mortuary funds. Members not working at the trade are assessed 2%% of the maximum wage scales for those funds. In 1945 the Executive Council, which has authority to “interpret and construe” the laws of the International, ruled that those not at the trade had to pay both on their earnings and on the maximum wage scale. Plaintiff urges that the ruling of the Executive Council was an amendment of the union constitution rather than an interpretation. We are not concerned with whether the Executive Council exceeded its authority but only with whether the ruling violates the Act. See Gurton v. Arons, 2 Cir., 339 F.2d 371, 374. We agree with the trial court that the requirements of § 411(a) (3) are applicable only to dues increases and assesments made after the" }, { "docid": "6369216", "title": "", "text": "guide our inquiry in this case. Against that background, we are reminded by the union of the policy against judicial interference in the internal affairs of unions. Local 657, United Brotherhood of Carpenters v. Sidell, 552 F.2d 1250, 1254 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); Rota v. Brotherhood of Railway, Airline & Steamship Clerks, 489 F.2d 998, 1003 (7th Cir. 1973), cert. denied, 414 U.S. 1144, 94 S.Ct. 896, 39 L.Ed.2d 99 (1974). Therefore, we approach our resolution of this issue fully conscious of, and with respect for, the interests that underlie that policy. Generally, internal union matters should be left to the union and its members. We have no desire to try to constitute this court as an “ex officio” union member with powers not accorded actual union members. In Williams v. Typographical Union, 423 F.2d 1295 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), the tenth circuit considered the reasonableness of a union constitutional provision that barred members classified as “not working at the trade” from voting on any and all union matters. A union member employed on a full-time basis in another field challenged his disfranchisement. Despite the broad ambit of the challenged union rule, the court limited inquiry to the rule’s application to voting on wage scales. Since “those not primarily dependent on the printing business for their livelihood . do not have the vital interest in wage scales which is present in those who are first and foremost printers . . . [w]e believe that the regulation is reasonable and does not violate the Act.” Id. at 1298. Unlike the attenuated interest of the plaintiff in Williams, the interest of laid-off workers in matters that will alter or effectively extinguish their recall rights is a most vital one. Recall rights represent the laid-off employees’ only hope of once again pursuing their livelihood in the company where they have been employed and have acquired a degree of seniority. The Local represented both Tube and Motor employees but those employees had interests that" }, { "docid": "7858003", "title": "", "text": "Local 3489 v. Usery, 429 U.S. at 308, 97 S.Ct. at 614. The Sixth Circuit’s application of the test, balancing the interests between the union and the Secretary, is instructional on the question of the legal sufficiency of the evidence of a reasonable qualification. We find additional support for the weight to be given to the interests of those working in covered employment in the case of Williams v. Int’l Typographical Union, 423 F.2d 1295 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970) where the Tenth Circuit held that barring a member classified as “not working at the trade” from voting on wage scales did not violate the LMRDA. The court found the restriction was reasonable because of the evidence presented by the Unions “that those not primarily dependent on the printing business for their livelihood ... do not have the vital interest in wage scales which is present in those who are first and foremost printers.” Id. at 1298. In conducting our balance here, we note that the Secretary acknowledged at oral argument that there is no evidence in the record of the percentage of Local 30 members who lost their membership as a result of being issued an honorary withdrawal card. For all we know, Mr. Felice is the only member thus far to be adversely affected by the rule. The Secretary neither contends nor introduces legally sufficient evidence that Local 30’s six month mandatory withdrawal card rule will substantially deplete the ranks of those eligible to run for office. See Wirtz v. Hotel Employees, Local 6, 391 U.S. at 499, 88 S.Ct. at 1748. Rather, the Secretary maintains that the rule is unreasonable because it violates the Department regulation mandating continued membership status for employ ees, like Felice, who become “temporarily unemployed” through no fault of their own. The magistrate judge reported that Local 30’s “restriction on candidate eligibility does not appear to be consistent with the Act’s purpose of protecting the rights of the rank and file and ensuring free and democratic union elections.” App. at 319. The district court" }, { "docid": "2823129", "title": "", "text": "(district court opinion at 4-5; R. Item 29). The court also denied plaintiffs’ motion for summary judgment. II. Section 101(a)(1) of the LRMDA guarantees in pertinent part that “Every member of a labor organization shall have equal rights and privileges within such organization * * * to vote in elections or referendums of the labor organization * * * and to participate in the deliberations and voting upon the business of such [Union membership] meetings, subject to reasonable rules and regulations in such organization’s constitution and by-laws.” Section 101(b) further provides that constitutional or bylaw provisions inconsistent with subsection (a) shall be of no force or effect. The purpose of the Act was to assure the “full and active participation by the rank and file in the affairs of the union.” American Federation of Musicians v. Wittstein, 379 U.S. 171, 182-183, 85 S.Ct. 300, 307, 13 L.Ed.2d 214 (1964); see Navarro v. Gannon, 385 F.2d 512, 518 (2d Cir.1967), certiorari denied, 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294. In view of the fact that “much of the bill was written on the floor of the Senate or House of Representatives” and that the Act contains numerous “calculated ambiguities or political compromises,” Cox, Internal Affairs of Labor Unions Under the Labor Reform Act of 1959, 58 Mich.L.Rev. 819, 852 (1960); see S.Rep. No. 187, 86th Cong., 1st Sess. (1959), 1959 U.S. Code Cong. & Ad.News 2318; H.Rep. No. 741, 86th Cong., 1st Sess. (1959), 1959 U.S. Code Cong. & Ad.News 2424, courts have focused on the broad remedial purposes of the Act rather than on its literal language. See Knox County Local v. National Rural Letter Carriers’ Association, 720 F.2d 936, 938 (6th Cir.1984); Navarro, 385 F.2d at 518. When a union provides its membership with the right to vote on a certain matter, the right must be extended on an equal basis and in a meaningful manner, Christopher v. Safeway Stores, Inc., 644 F.2d 467, 470 (5th Cir.1981); Alexander v. International Union of Operating Engineers, 624 F.2d 1235, 1240 (5th Cir.1980); Bunz v. Moving Picture Machine Operators’ Protective" }, { "docid": "8576106", "title": "", "text": "55 L.Ed.2d 252 (1978); Feltington v. Moving Picture Machine Operators Union Local 306, 605 F.2d 1251, 1258 (2d Cir.1979), cert. denied, 446 U.S. 943, 100 S.Ct. 2169, 64 L.Ed.2d 799 (1980). Even where the deprivation is justified, damages have been allowed for emotional distress flowing directly from the deprivation of the procedural right of a pre-termination hearing. Carey, 435 U.S. at 260-64, 98 S.Ct. at 1052; Feltington, 605 F.2d at 1258. The record evidence in this case, however, is lacking in proof that would tend to substantiate items of damage falling in this latter category and consequently no recovery for this item of damage is warranted. See Carey, 435 U.S. at 262, 98 S.Ct. at 1051. C. Appellants’ final contention is that they have a common law contractual right under the union constitution to membership in the Laurel local, and that the International’s invalidation of their transfers and journeymen wiremen classification is a breach of that contract. The union consti tution constitutes a contract between the International and its membership. Parish, 450 F.2d at 826. Under this contract as we have interpreted it, appellants had no membership rights in the Laurel local. It follows that their common law contract claim must fail. AFFIRMED. . Equal Rights — Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations and such organization’s constitution and bylaws. 29 U.S.C. § 411(a)(1). . Safeguards Against Improper Disciplinary Action — No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. 29 U.S.C. § 411(a)(5). . Article XXV of the union constitution provides in part: TRAVELING CARDS * * * *" }, { "docid": "836619", "title": "", "text": "that § 301 (a) does not confer federal jurisdiction over the case before us. The district court also held that it had jurisdiction under § 102 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 412. That section gives federal jurisdiction over a suit for the deprivation of “equal rights” guaranteed by § 101(a)(1), 29 U.S.C. § 411(a)(1) which reads: “Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organizations, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization’s constitution and bylaws.” Section 102 does not confer jurisdiction unless § 101(a)(1) has been violated. Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 13 L.Ed.2d 190. The “equal rights” guaranteed are subject to the reasonable rules and regulations in the union’s constitution and bylaws. No claim is presented of any discrimination at any election. The argument attacks the refusal of the International to call for a referendum on the merger question. A referendum is required if the district is self-supporting. The Executive Board of the International found that District 22 was not self-supporting. The attack of the plaintiffs can go only to the reasonableness of the pertinent constitutional provision. Nothing before us establishes that the distinction between self-supporting and non-self-supporting districts is unreasonable or that the requirement of self-support has been unequally applied to discriminate against anyone or any district. LMRDA is remedial legislation and as such should be liberally construed. International Brotherhood of Boilermakers, etc. v. Braswell, 5 Cir., 388 F.2d 193, 200-201, cert. denied 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854. It does not, however, purport to project absolute judicial control over the internal management of unions. Schuchardt v. Millwrights & Machinery Erectors, Local 2834, 10 Cir., 380 F.2d 795, 797. The rights granted by the Act are specific. Congress did not intend that the Act be an invitation to the courts to intervene at will" }, { "docid": "9588697", "title": "", "text": "membership policy presently in dispute would not apply to persons whose positions were similar to those occupied by the Brennan and Alvey plaintiffs. This crucial factual distinction, in our opinion, deprives the Seventh Circuit’s rather broad language of any controlling weight in the controversy before us. Second, we believe the union’s membership policy as it applies to persons who voluntarily resign their jobs is a proper exercise of rulemaking authority under section 101(a)(1). It is well settled that a union’s consistent interpretation of its own constitution will not be disturbed by a federal court unless the challenged regulation is “unreasonable.” International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609,28 L.Ed.2d 609 (1971). In this instance, we see nothing “unreasonable” about a rule which, in effect, guarantees that internal union affairs will be governed by those whose interests are most at stake — workers presently employed in the steel industry. The Tenth Circuit’s opinion in Williams v. International Typographical Union, 423 F.2d 1295 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), supports our conclusion. In that case, the plaintiff left full-time employment as a printer to become a technical writer. His printers’ local reclassified him as a member “not working at the trade.” This change resulted in Williams’ loss of voting rights and priority. The court rejected Williams’ challenge to the reclassification and held that the union’s action was “reasonable” within the meaning of section 101(a)(1). The question is the reasonableness of the International’s regulation prohibiting a member classified as “not at the trade” from voting on wage scales. The evidence for the Unions was that those not primarily dependent on the printing business for their livelihood, a characteristic found in the not-at-the-trade classification, do not have the vital interest in wage scales which is present in those who are first and foremost printers. We believe that the regulation is reasonable and does not violate the Act. 423 F.2d at 1298. Finally, we find nothing in the LMRDA or its legislative history to indicate that Congress intended the “has fulfilled the requirements" }, { "docid": "6369217", "title": "", "text": "as “not working at the trade” from voting on any and all union matters. A union member employed on a full-time basis in another field challenged his disfranchisement. Despite the broad ambit of the challenged union rule, the court limited inquiry to the rule’s application to voting on wage scales. Since “those not primarily dependent on the printing business for their livelihood . do not have the vital interest in wage scales which is present in those who are first and foremost printers . . . [w]e believe that the regulation is reasonable and does not violate the Act.” Id. at 1298. Unlike the attenuated interest of the plaintiff in Williams, the interest of laid-off workers in matters that will alter or effectively extinguish their recall rights is a most vital one. Recall rights represent the laid-off employees’ only hope of once again pursuing their livelihood in the company where they have been employed and have acquired a degree of seniority. The Local represented both Tube and Motor employees but those employees had interests that as events transpired became antagonistic. The good standing provision permitted the Motor employees to take over the transaction of Local business at a critical time, to exclude the laid-off Tube employees from attending the meeting at which their vital interests were placed in jeopardy, and to strip the excluded Tube employees of their recall seniority. The only employees adversely affected by the vote that occurred at the closed meeting were those who were excluded. Yet, they not only could not vote on a matter of utmost concern to them, they could not even be heard on the merits of the issue. The union submits a number of grounds that it contends demonstrate the reasonableness of the application of the good standing provision to the laid-off Tube employees. First, the union points out that the provision was adopted at its 1972 International convention and ratified by the membership, and therefore was not fashioned specifically for the Tell City situation. We are unconvinced that this argument has any relevance because, assuming its verity, this suit challenges not" }, { "docid": "20331480", "title": "", "text": "who admitted narcotics convictions claimed that they were disciplined when the union, acting in accordance with the collective bargaining agreement and the declared policy of the shippers not to hire any narcotics violators, refused to refer them for employment with the shippers. The court disagreed, saying that the members’ self-admitted disqualification kept the action from being discipline. Had they contested the fact of conviction, the court said they would have been entitled to the procedural safeguards of § 411(a) (5). The concurrence of the above circumstances — the regulation’s reasonableness, its fair application, and plaintiff’s admitted outside employment — convinces us that the reclassification did not amount to discipline. In this situation, the procedural safeguards would be of no help to plaintiff. If he were given a hearing, he would be unable to show that the regulation did not apply to him, and, in light of the union’s initial decision to reclassify him and our conclusion that the scheme is reasonable, it can hardly be urged that he could successfully assert that for some reason it should not be applied to him. We also note that he did press the latter point, unsuccessfully, in his appeal to the International Convention. Because we cannot attribute to Congress an intention to provide procedural safeguards where there is nothing to safeguard, we conclude that where a reasonable regulation is applied in a fair and just manner to one who, by self-admission, is covered by it, such applica tion does not come within the statutory phrase “otherwise disciplined.” Plaintiff says that, in violation of § 411(a) (1), the Unions have wrongfully denied him the right to vote on wage scales. That section provides that every union member shall have equal rights to participate in and vote at membership meetings “subject to reasonable rules and regulations in such organization’s constitution and bylaws.” We assume that the right to vote includes the right to vote on wage scales. This right may be restricted by reasonable rules and regulations. See Calhoon v. Harvey, 379 U.S. 134, 138-139, 85 S.Ct. 292, 13 L.Ed.2d 190, and Navarro v. Gannon," }, { "docid": "7858002", "title": "", "text": "[LMRDA’s] phrase1 ‘reasonable qualifications uniformly imposed’ should be interpreted, if possible, in such a way as to vindicate the former interest in preference to the latter.” 965 F.2d at 64. In Nat’l Ass’n of Letter Carriers, the court observed that, in contrast to situations such as existed in Wirtz v. Hotel Employees, Local 6, “the Secretary does not contend that more than a small percentage of union members are barred from office by reason of the qualification....” 965 F.2d at 65. Thus, when the court weighed the Secretary’s evidence of the relatively small percentage of union members adversely affected by the qualification against the union’s stated concern that union members who had applied for supervisory positions created .a conflict of interest, it determined that the union’s qualification was reasonable. The court concluded that, although the Congressional authorization of “reasonable qualifications uniformly imposed” should not be given a broad reach, Wirtz v. Hotel Employees, Local 6, 391 U.S. at 499, 88 S.Ct. at 1748, the LMRDA “does not render unions powerless to restrict candidacies for office.” Local 3489 v. Usery, 429 U.S. at 308, 97 S.Ct. at 614. The Sixth Circuit’s application of the test, balancing the interests between the union and the Secretary, is instructional on the question of the legal sufficiency of the evidence of a reasonable qualification. We find additional support for the weight to be given to the interests of those working in covered employment in the case of Williams v. Int’l Typographical Union, 423 F.2d 1295 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970) where the Tenth Circuit held that barring a member classified as “not working at the trade” from voting on wage scales did not violate the LMRDA. The court found the restriction was reasonable because of the evidence presented by the Unions “that those not primarily dependent on the printing business for their livelihood ... do not have the vital interest in wage scales which is present in those who are first and foremost printers.” Id. at 1298. In conducting our balance here, we note that the" }, { "docid": "9497950", "title": "", "text": "the right to vote, as in Turner. The other cases relied upon by the plaintiffs are similarly distinguishable. See, e.g., McGinnis v. Local Union 710, Int’l Bhd. of Teamsters, 774 F.2d 196, 203 (7th Cir.1985) (in-person voting requirement, while not facially discriminatory, was “unreasonable” under Title I because it had a discriminatory impact on members who lived far away), cert. denied, 475 U.S. 1121, 106 S.Ct. 1638, 90 L.Ed.2d 184 (1986); Alvey v. General Elec. Co., 622 F.2d 1279, 1287 (7th Cir.1980) (the equal right to vote was violated where only members who had paid their dues could vote on a proposal affecting laid off members’ seniority rights and laid off members were forbidden from paying their dues); Bum v. Moving Picture Mach. Operators’ Protective Union Local 224, 567 F.2d 1117, 1122 (D.C.Cir.1977) (equal right to east meaningful votes was violated where the union raised the percentage of votes necessary to defeat a union measure above that set forth in the union’s bylaws); Navarro v. Gannon, 385 F.2d 512, 520 (2d Cir.1967) (affirming the issuance of a preliminary injunction by the district court, explaining that permitting an international union official to be present at a local union meeting would violate the members’ right of free discussion under Section 101(a)(2) even absent evidence of discrimination), cert. denied, 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294 (1968); Sheldon v. O’Callaghan, 497 F.2d 1276, 1282-83 (2d Cir.) (Section 101(a)(1) was violated despite universal suffrage when the union refused to allow opponents of a change to the union constitution to mail their views to the membership), cert. denied, 419 U.S. 1090, 95 S.Ct. 681, 42 L.Ed.2d 682 (1974); Bauman v. Presses 117 L.R.R.M. 2393, 2400, 1984 WL 3255 (D.D.C. Sept. 19, 1984) (balloting procedure employed by the union did not provide mem bers with sufficient notice and information regarding the subject matter of the vote, leaving the plaintiffs without an adequate opportunity to have a meaningful and informed vote in violation of Section 101(a)). In Black v. Transport Workers Union of America, 454 F.Supp. 813 (S.D.N.Y.) (Gagliardi, J.), aff'd without op., 594 F.2d" }, { "docid": "20331481", "title": "", "text": "it should not be applied to him. We also note that he did press the latter point, unsuccessfully, in his appeal to the International Convention. Because we cannot attribute to Congress an intention to provide procedural safeguards where there is nothing to safeguard, we conclude that where a reasonable regulation is applied in a fair and just manner to one who, by self-admission, is covered by it, such applica tion does not come within the statutory phrase “otherwise disciplined.” Plaintiff says that, in violation of § 411(a) (1), the Unions have wrongfully denied him the right to vote on wage scales. That section provides that every union member shall have equal rights to participate in and vote at membership meetings “subject to reasonable rules and regulations in such organization’s constitution and bylaws.” We assume that the right to vote includes the right to vote on wage scales. This right may be restricted by reasonable rules and regulations. See Calhoon v. Harvey, 379 U.S. 134, 138-139, 85 S.Ct. 292, 13 L.Ed.2d 190, and Navarro v. Gannon, 2 Cir., 385 F.2d 512, 519, cert. denied 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294. The question is the reasonableness of the International’s regulation prohibiting a member classified as “not at the trade” from voting on wage scales. The evidence for the Unions was that those not primarily dependent on the printing business for their livelihood, a charactéristic found in the not-at-the-trade classification, do not have the vital interest in wage scales which is present in those who are first and foremost printers. We believe that the regulation is reasonable and does not violate the Act. Cf. Allen v. International Alliance etc., 5 Cir., 338 F.2d 309, 319. The reclassification also resulted in plaintiff’s loss of priority to the detriment of his employment opportunities. The Act does not explicitly create an equal right to priority and such right, by its very nature, cannot be inferred. The creation and operation of priority rights are within the expertise of labor organizations. Here, the loss of priority was because of a reasonable regulation which was fairly" }, { "docid": "20331482", "title": "", "text": "2 Cir., 385 F.2d 512, 519, cert. denied 390 U.S. 989, 88 S.Ct. 1184, 19 L.Ed.2d 1294. The question is the reasonableness of the International’s regulation prohibiting a member classified as “not at the trade” from voting on wage scales. The evidence for the Unions was that those not primarily dependent on the printing business for their livelihood, a charactéristic found in the not-at-the-trade classification, do not have the vital interest in wage scales which is present in those who are first and foremost printers. We believe that the regulation is reasonable and does not violate the Act. Cf. Allen v. International Alliance etc., 5 Cir., 338 F.2d 309, 319. The reclassification also resulted in plaintiff’s loss of priority to the detriment of his employment opportunities. The Act does not explicitly create an equal right to priority and such right, by its very nature, cannot be inferred. The creation and operation of priority rights are within the expertise of labor organizations. Here, the loss of priority was because of a reasonable regulation which was fairly enforced. The union action did not deprive plaintiff of any right guaranteed by the Act. Loss of priority also meant that plaintiff was no longer entitled to membership and voting rights in his local chapel. The chapel is a subdivision of the Local Union and is found in each business which has a contract with the Local. Section 402(i) defines a labor organization as one “which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, * * These functions are performed by the Local, not by the chapels. They appear to exist mainly to collect dues and keep earning records, for the benefit of the Local. In our opinion, a chapel is not a labor organization within the meaning of the Act and the deprivation of rights which pertain thereto does not violate the Act. Section 411(a) (3) provides that dues shall not be increased and assessments shall not be levied except by vote of" } ]

[ { "docid": "23522022", "title": "", "text": "court, without objection, concluded that it could properly consider the complete interview transcripts and tapes under the incorporation by reference doctrine. The court then dismissed the complaint with prejudice and denied leave to amend. Van Buskirk appeals this order. II. Standard of Review The district court granted defendants’ motion to dismiss under Rule 12(b)(6). Ordinarily, a court may look only at the face of the complaint to decide a motion to dismiss. In this case, the district court relied on the doctrine of “incorporation by reference” to consider documents that were referenced extensively in the complaint and were accepted by all parties as authentic. See In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999). Under the “incorporation by reference” rule of this Circuit, a court may look beyond the pleadings without converting the Rule 12(b)(6) motion into one for summary judgment. We review de novo the district court’s dismissal of complaints for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Id. at 983. “A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Rabang v. INS, 35 F.3d 1449, 1451 (9th Cir.1994) (citing Buckey v. County of Los Angeles, 968 F.2d 791, 793-94 (9th Cir.1992)). III. Discussion A. Original Broadcasts After reviewing the CNN interviews with Van Buskirk as a whole, the district court concluded as a matter of law that Van Buskirk could not maintain a defamation action based upon the reported use of deadly nerve gas or the targeting of American defectors because such reports were consistent with Van Buskirk’s own version of events as told to Appellees. The district court did acknowledge that the reports contained some “contextual discrepancies,” but ultimately decided that a defamation claim could not stand where a report was entirely consistent with the plaintiffs version of events. Additionally, the court found no authority for “the proposition that publication of statements obtained during repetitive, suggestive or even brutal interviews gives rise to a claim for defamation.”" } ]

[ { "docid": "8353270", "title": "", "text": "In other words, the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Seru., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face “show that relief is barred” for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In deciding whether to grant a motion to dismiss, the court must accept as true all “well-pleaded factual allegations” in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir.2009). “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond.” United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). “A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” Id. at 908. B. Rule 9(b) Rule 9(b) imposes an elevated pleading standard for fraud claims. Rule 9(b) states: In alleging fraud or" }, { "docid": "23230486", "title": "", "text": "court resolved that motion solely to establish the record for the motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994) (discussing when extraneous doc uments could be considered on a motion to dismiss), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002). We see no reason to treat the order striking documents as separate from the order denying the motion to dismiss. We conclude that we have jurisdiction to review both orders. IV. STANDARD OF REVIEW We review de novo the district court’s denial of a motion to dismiss on qualified immunity grounds. Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir.1998). To survive a motion to dismiss for failure to state a claim, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); see Fed.R.Civ.P. 12(b)(6). In general, the inquiry is limited to the allegations in the complaint, which are accepted as true and construed in the light most favorable to the plaintiff. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). However, we need not accept as true allegations contradicting documents that are referenced in the complaint or that are properly subject to judicial notice. See id.; Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir.2007). V. ANALYSIS A. The Motion to Strike Defendants contend the district court abused its discretion in striking their exhibits because the exhibits were either referenced in the complaint, or judicially noticeable. Defendants appear correct, see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003); Branch, 14 F.3d at 453-54, particularly because they do not offer the extraneous documents for their truth, but to show their articulated rationales for denying Lazy Y the leases. However, we need not decide the issue because we conclude, as the district court did, that Defendants’ motion to dismiss lacks merit even if each extraneous document is considered. B. The Motion to Dismiss" }, { "docid": "21621478", "title": "", "text": "“the court [is not] required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001) (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994)). Review of a FRCP 12(b)(6) motion to dismiss is generally limited to the contents of the complaint, and the court may not consider other documents outside the pleadings. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001). The court may, however, consider documents attached to the complaint. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). If a plaintiff fails to attach to the complaint the documents on which the complaint is based, a defendant may attach such documents to its motion to dismiss for the purpose of showing that the documents do not support plaintiffs claim. In re Autodesk, Inc. Sec. Litig., 132 F.Supp.2d 833, 837 (N.D.Cal.2000) (citing Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994)). This permits the court to consider the full text of a document that the plaintiffs complaint only partially quotes. Autodesk, 132 F Supp 2d at 838 (citing In re Stac Electronics Sec. Litig., 89 F.3d 1399, 1405 n. 4 (9th Cir.1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1105, 137 L.Ed.2d 308 (1997)). Additionally, “[t]he court need not * * * accept as true allegations that contradict matters properly subject to judicial notice * * Sprewell, 266 F.3d at 988 (citing Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir.1987)). 2 In a securities fraud action, a heightened standard of pleading applies. First, a case brought under Section 10(b) and Rule 10b-5 must meet the particularity requirements of FRCP 9(b). Stac Electronics, 89 F.3d at 1404; see also In re GlenFed. Inc. Sec. Litig., 42 F.3d 1541, 1545 (9th Cir.1994) (en banc). Rule 9(b) requires a plaintiff alleging fraud to “set forth what is false or misleading about [the] statement] and why it is false.” GlenFed, 42 F.3d at 1548. Second, plaintiffs complaint must satisfy the requirements" }, { "docid": "8697317", "title": "", "text": "Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Rather, to withstand a motion to dismiss, the “claims must be ‘supported by specific and detailed factual allegations’.... ” Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir.2000) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)). In determining the sufficiency of a plaintiffs claim for Rule 12(b)(6) purposes, a court may consider the factual allegations in the complaint, documents attached to the complaint as an exhibit or incorporated therein by reference, matters of which judicial notice may be taken, or documents in which plaintiff has notice, possession or knowledge of and on which plaintiff relied on in commencing the action. See Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). In contrast, when assessing the sufficiency of the complaint, the court does not consider extraneous material because considering such would run counter to the liberal pleading standard which requires only a short and plain statement of the claim showing entitlement to relief. Id. at 154. Moreover, the plaintiff would be prejudiced as it lacked notice that such material would be considered. Id. at 153. Therefore, a court must either exclude such material from its consideration of the Rule 12(b)(6) motion or convert the motion to one for summary judgment providing the parties the opportunity to conduct discovery and supplement the record with additional material to support a Rule 56 motion. Id. at 154. Nevertheless, where a plaintiff has chosen not to attach a document to the complaint or incorporate it by reference where the plaintiff relies heavily on such document and it is integral to the complaint, a court may consider a document in deciding a Rule 12(b)(6) motion, without converting the proceeding to one for summary judgment. Id. at 153 (citing Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995)). Finally, to survive" }, { "docid": "17441944", "title": "", "text": "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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); accord Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009). “[I]n passing on a motion to dismiss, ... the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that may be drawn from the allegations of fact. See Scheuer, 416 U.S. at 236, 94 S.Ct. 1683; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, the Court need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). In ruling on a motion to dismiss, a court may consider “only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice.” See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C.Cir.1997). In this case, the Court has considered Laughlin’s formal administrative complaint and the administrative judge’s order on her motions to amend. These documents, though not attached to Laughlin’s complaint, are referred to in the complaint, see Compl. ¶¶ 138, 149, are integral to Laughlin’s exhaustion of administrative remedies, and are public records subject to judicial notice; hence, they may be considered without converting defendant’s motion into one for summary judgment. See id.; see also Kaempe v. Myers, 367 F.3d 958, 965 (D.C.Cir.2004); Bowe-Connor v. Shinseki, 845" }, { "docid": "1219926", "title": "", "text": "motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiffs burden at the pleading stage is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that “[a] pleading which sets forth a claim for relief ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and takes “all allegations of material fact as true and construe[s] them in the light most favorable to the non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint must “contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “[CJourts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, the claim must be “‘plausible on its" }, { "docid": "19915386", "title": "", "text": "than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). On a motion to dismiss, this court accepts as true a plaintiffs well-pled factual allegations and construes all factual inferences in the light most favorable to the plaintiff. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). The court is not required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of the complaint and material properly submitted with the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir.1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). Under the incorporation by reference doctrine, the court may also consider documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994), overruled on other grounds by 307 F.3d 1119, 1121 (9th Cir.2002). A motion to dismiss under Rule 12(b)(6) can not be granted based upon an affirmative defense unless that “defense raises no disputed issues of fact.” Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir.1984). For example, a motion to dismiss may be granted based on an affirmative defense where the allegations in a complaint are contradicted by matters properly subject to judicial notice. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.2010). In addition, a motion to dismiss may be granted based upon an affirmative defense where the complaint’s allegations, with all inferences drawn in Plaintiffs favor, nonetheless show that the affirmative defense “is apparent on the face of the complaint.” See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir.2010). Additionally, Federal Rulé of Evidence 201" }, { "docid": "2806570", "title": "", "text": "plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). On a motion to dismiss, the court accepts as true a plaintiffs well-pled factual allegations and construes all factual inferences in the light most favorable to the plaintiff. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). The court is not required to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In evaluating a Rule 12(b)(6) motion, review is ordinarily limited to the contents of the complaint and material properly submitted with the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir.1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). Under the incorporation by reference doctrine, the court may also consider documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th .Cir.1994), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1121 (9th Cir.2002). A motion to dismiss under Rule 12(b)(6) cannot be granted based upon an affirmative defense unless that “defense raises no disputed issues of fact.” Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir.1984). For example, a motion to dismiss may be granted based on an affirmative defense where the allegations in a complaint are contradicted by matters properly subject to judicial notice. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th, Cir.2010). In addition, a motion to dismiss may be granted based upon an affirmative defense where the complaint’s allegations, with all inferences drawn in the plaintiffs favor, nonetheless show that the affirmative defense “is apparent on the face of the complaint.” See Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d" }, { "docid": "8353271", "title": "", "text": "accept as true all “well-pleaded factual allegations” in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir.2009). “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond.” United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). “A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” Id. at 908. B. Rule 9(b) Rule 9(b) imposes an elevated pleading standard for fraud claims. Rule 9(b) states: In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. “To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud ....” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (internal quotation marks omitted). Allegations of fraud must include the “time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Id. (internal quotation marks omitted). The “[ajverments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009) (internal quotation marks omitted). A plaintiff alleging fraud “must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false.” Vess v. Ciba-Geigy Corp. USA, 317" }, { "docid": "19432868", "title": "", "text": "where the court's inquiry is limited to the allegations in the complaint; or factual, where the court may look beyond the complaint to consider extrinsic evidence. Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). The burden of proof in a Rule 12(b)(1) motion is on the party asserting jurisdiction. See Sopcak v. N. Mountain Helicopter Serv. , 52 F.3d 817, 818 (9th Cir. 1995). In ruling on a motion to dismiss, a court must accept all factual allegations in the complaint and construe the pleadings in the light most favorable to the party opposing the motion. Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001). The court may disregard allegations that are contradicted by matters properly subject to judicial notice or by exhibit. Id. The court may also disregard conclusory allegations and arguments which are not supported by reasonable deductions and inferences. Id. Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss the complaint for \"failure to state a claim upon which relief can be granted.\" Fed. R. of Civ. P. 12(b)(6). To survive dismissal, a plaintiff must allege \"sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' \" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). This requires the plaintiff to provide \"more than labels and conclusions, and a formulaic recitation of the elements.\" Twombly , 550 U.S. at 555, 127 S.Ct. 1955. When deciding, the court may consider the plaintiff's allegations and any \"materials incorporated into the complaint by reference[.]\" Metzler Inv. GMBH v. Corinthian Colleges, Inc. , 540 F.3d 1049, 1061 (9th Cir. 2008) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ). A plaintiff's \"allegations of material fact are taken as true and construed in the light most favorable to the plaintiff[,]\" but" }, { "docid": "21621477", "title": "", "text": "Tarrant County Narcotics Intell. & Coord. Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To this end, plaintiffs complaint should set forth “either direct or inferential allegations with respect to all the material elements of the claim”. Wittstock v. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.2003). Under Rule 12(b)(6), a complaint “should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)); see also Conley, 355 U.S. at 45-46, 78 S.Ct. 99. All material allegations in the complaint must be taken as true and construed in the light most favorable to plaintiff. See Silicon Graphics, 183 F.3d at 980 n. 10. But “the court [is not] required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001) (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994)). Review of a FRCP 12(b)(6) motion to dismiss is generally limited to the contents of the complaint, and the court may not consider other documents outside the pleadings. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001). The court may, however, consider documents attached to the complaint. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). If a plaintiff fails to attach to the complaint the documents on which the complaint is based, a defendant may attach such documents to its motion to dismiss for the purpose of showing that the documents do not support plaintiffs claim. In re Autodesk, Inc. Sec. Litig., 132 F.Supp.2d 833, 837 (N.D.Cal.2000) (citing Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994)). This permits the court to" }, { "docid": "8268255", "title": "", "text": "barred” as a matter of law. See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (finding dismissal appropriate when the statute of limitations prevents relief). In deciding whether to grant a motion to dismiss, courts must accept as true all well-pleaded factual allegations in the pleading under attack. Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937. A court is not, however, “required to accept as true allegations that are merely conelusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). The court’s plausibility analysis is. a “context-specific task,” and it calls on the court to rely on its experience and to exercise common sense. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. When ruling bn a motion to dismiss, a court must normally convert a Rule 12(b)(6) motion into one for summary judgment under Rule 56 if the court considers evidence outside of the pleadings. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). However, a court may consider certain materials, such as documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice, without converting the motion to dismiss into a motion for summary judgment. Id. at 908. IV.-' ANALYSIS Sorin moves to dismiss on the ground that Mr. Funke’s state law claims are preempted by the Medical Device Amendment (“MDA”) to the Food, Drug, and Cosmetic Act (“FDCA”). The MDA contains an express preemption provision: [N]o State, or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement— (1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter. 21 U.S.C. § 360k(a). The Supreme Court set, the framework for analyzing express preemption under the MDA in Riegel v. Medtronic, Inc., 552 U.S. 312, 321-22, 128 S.Ct. 999, 169" }, { "docid": "13909472", "title": "", "text": "Motion to Dismiss for Failure to State a Claim Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) permits dismissal of a complaint that fails “to state a claim upon which relief can be granted.” Under Rule 12(b)(6), review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996). Courts may also “consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice— without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). Documents whose contents are alleged in a complaint and whose authenticity are not questioned by any party may also be considered in ruling on a Rule 12(b)(6) motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994). On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.1996). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. See Sprewell, 266 F.3d at 988; Nat’l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir.2000); In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.1996). Moreover, the court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell, 266 F.3d at 988. As the Ninth Circuit has stated, “[t]he issue is not whether a plaintiffs success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims.” De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). The court must determine whether or not it" }, { "docid": "13909471", "title": "", "text": "content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (internal quotations omitted). “Averments of fraud must be accompanied by the who, what, when where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003). Plaintiffs may not simply plead neutral facts to identify the transaction, but rather, the plaintiffs must also set forth what is false or misleading about a statement, and why it is false. See Glen-Fed, 42 F.3d at 1548. A motion to dismiss a claim grounded in fraud for failure to plead with particularly under Rule 9(b) is the functional equivalent of a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Vess, 317 F.3d at 1107. Thus, “[a]s with Rule 12(b)(6) dismissals, dismissals for failure to comply with Rule 9(b) should ordinarily be without prejudice. Leave to amend should be granted if it appears at all possible that the plaintiff can correct the defect.” Id. III. Motion to Dismiss for Failure to State a Claim Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) permits dismissal of a complaint that fails “to state a claim upon which relief can be granted.” Under Rule 12(b)(6), review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996). Courts may also “consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice— without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). Documents whose contents are alleged in a complaint and whose authenticity are not questioned by any party may also be considered in ruling on a Rule 12(b)(6) motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994). On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most" }, { "docid": "21239390", "title": "", "text": "than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, — U.S. ——,---, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). “[Fjactual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965. In considering a motion pursuant to Fed.R.Civ.P. 12(b)(6), a court must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.1998). The complaint must be read in the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). However, a court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Sprewell, 266 F.3d at 988; W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). Furthermore, unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment, a court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). In re American Cont’l Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir.1996), rev’d on other grounds sub nom Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998). A court may, however, consider exhibits submitted with or alleged in the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001). For all of these reasons, it is only under extraordinary circumstances that dismissal is" }, { "docid": "14245470", "title": "", "text": "difficult to estimate at the time the Agreements were executed. Id. ¶¶ 17, 33. They therefore assert that the liquidated damages represent penalties to discourage them from exercising their rights to terminate under the Agreements. Id. Although Shell does not seek dismissal of Count III or IV of the Complaint, it is nevertheless instructive to review the claims asserted in those counts. In Count III, Plaintiffs argue that they are entitled to a judgment declaring that they need not pay damages under the liquidated damages provisions set forth in Articles 6(b) and 6(c) of the Recapture Agreements because they gave timely notice of termination. Id. ¶¶ 50-51. And, in Count IV, Plaintiffs contend that Shell is in breach of the terms and conditions of the Agreements, including its duty of good faith and fair dealing in its performance and enforcement of the Agreements. Id. ¶ 53. Shell assumes arguendo that it is in breach of the Agreements for purposes of its motion to dismiss. See Def.’s Mem. 18, 28. LEGAL STANDARDS Fed.R.Civ.P. 12(b)(6) permits dismissal of a complaint that fails “to state a claim upon which relief can be granted.” “A Rule 12(b)(6) ‘dismissal is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.’ ” Zamani v. Carnes, 491 F.3d 990, 996-97 (9th Cir.2007) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001)) (brackets omitted). Under the rule, review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996). Courts may also “consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). Documents whose contents are alleged in a complaint and whose authenticity are not questioned by any party may also be considered in ruling on a Rule 12(b)(6) motion to dismiss. See" }, { "docid": "14245471", "title": "", "text": "of a complaint that fails “to state a claim upon which relief can be granted.” “A Rule 12(b)(6) ‘dismissal is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.’ ” Zamani v. Carnes, 491 F.3d 990, 996-97 (9th Cir.2007) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001)) (brackets omitted). Under the rule, review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996). Courts may also “consider certain materials — documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). Documents whose contents are alleged in a complaint and whose authenticity are not questioned by any party may also be considered in ruling on a Rule 12(b)(6) motion to dismiss. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994). On a Fed.R.Civ.P. 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.1996). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. See Sprewell, 266 F.3d at 988; Nat'l Ass’n for the Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir.2000); In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.1996). Moreover, the court need not accept as true allegations that contradict matters properly subject to judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell, 266 F.3d at 988. DISCUSSION Shell seeks dismissal of Counts I and II of the Complaint. The Court will evaluate each count in turn. 1. Count I of the Complaint: Unfair Methods of Competition Under HRS § 480-2 In Count I" }, { "docid": "2677804", "title": "", "text": "named plaintiff, and retained the same three causes of action as in the original complaint. Defendants now seek dismissal of all three causes of action, and a protective order to stay discovery. II. LEGAL STANDARD Dismissal is appropriate under Rule 12(b)(6) when a plaintiffs allegations fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Court must accept as true the factual allegations of the complaint and indulge all reasonable inferences to be drawn from them, construing the complaint in the light most favorable to the plaintiff. Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Unless the Court converts the Rule 12(b)(6) motion into a summary judgment motion, the court may not consider material outside of the complaint. Lucas v. Department of Corrections, 66 F.3d 245, 248 (9th Cir.1995); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994). Documents attached to the complaint and incorporated therein by reference, however, are treated as part of the complaint for purposes of Rule 12(b)(6). Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In addition, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting it into one for summary judgment. Branch, 14 F.3d at 454; see Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998) The Court must construe the complaint liberally, and dismissal should not be granted 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.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998); Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.1997); 5A CHARLES A. WRIght & Arthur R. Miller, Federal PRACTICE AND PROCEDURE § 1357 (2d ed.1990), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal" }, { "docid": "21239389", "title": "", "text": "also known as the Class Action Fairness Act of 2005. On May 7, 2007, BAC filed a motion for judgment on the pleadings. On June 22, 2007, the Court took BAC’s motion for judgment on the pleadings off calendar after plaintiff agreed to amend her complaint. Plaintiff filed the First Amended Complaint (“FAC”) on July 12, 2007, adding Bank of America, N.A. as a defendant. On July 27, 2007, defendants filed the present motion to dismiss the FAC. Plaintiff filed her opposition to defendants’ motion to dismiss on August 6, 2007. Defendants filed a reply thereto on August 13, 2007. A hearing on was held on September 24, 2007. After carefully considering the arguments set forth by the parties, the Court finds and concludes as follows: II. LEGAL STANDARD A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a complaint. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, — U.S. ——,---, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). “[Fjactual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965. In considering a motion pursuant to Fed.R.Civ.P. 12(b)(6), a court must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.1998). The complaint must be read in the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). However, a court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Sprewell, 266 F.3d at 988; W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Dismissal pursuant to Rule 12(b)(6) is proper" }, { "docid": "11103073", "title": "", "text": "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id., quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Thus, [i]n keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 1950 (the “Twombly two-step”). In evaluating a motion to dismiss, the court must accept the allegations of material fact as true, subject to the limits identified in Twombly, and construe those allegations in the light most favorable to the non-moving party. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). In addition to the allegations of the complaint, the court may also consider documents whose authenticity no party questions which are attached to, or incorporated by reference into, the complaint, as well as matters capable of judicial notice. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir.2005); Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.), cert. denied, 512 U.S. 1219, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002); Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C.Cir.2006). The court need not accept as true allegations in the complaint that contradict these sources. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008), citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). FACTUAL ALLEGATIONS The factual allegations of the SAC are substantially the same as alleged in the FAC. Additional facts are provided by those exhibits submitted in connection with the motion to dismiss the FAC which are incorporated by reference into the SAC. Wyndham Resort Development Corporation (‘Wyndham Resort Development”), a subsidiary of WWC, employed Toohey" } ]

[ { "docid": "13078512", "title": "", "text": "debtor be “sufficiently stable and regular” to enable the debtor to make payments under the chapter 13 plan is not met by mere allegations that there is an income potential which is contingent upon developments that appear unlikely based on the evidence before the Court. 5 Collier on Bankruptcy ¶ 1300.40[1] at 1300-83 (L. King ed., 15th ed. 1993). The debtor testified that his current income was insufficient to support he and his wife and their six minor children and fund the chapter 13 plan. The only evidence of recent income was a temporary position at Clark University which has since concluded, and minor consulting fees. The debtor provided no testimony at the July 6, 1994, hearing on either future jobs or future income other than that he was actively seeking employment and would have income if he ultimately prevailed in the various litigation he was pursuing. The chapter 13 plan, as noted above, relies on successful litigation with the University of Pittsburgh to fund the plan, but as noted above, the University of Pittsburgh has filed a motion to dismiss based on the signed release by the debtor. The Court finds that the debtor is not an individual with regular income. Second, the Bankruptcy Court for the District of New Hampshire, in the chapter 11 case of In re Marsh Fairway Corp., dismissed that chapter 11 ease finding, “... the litigation here is the entire core of the so-called plan of reorganization, i.e., this Court would have to do exactly what the state courts would do in the state court lawsuits to determine the rights of the debtor and the objecting parties before any plan could be considered for confirmation.” In re Marsh Fairway Corp., 148 B.R. 721, 723 (Bankr.D.N.H.1992). While this Court realizes that the Marsh case was a chapter 11 case, it finds the reasoning of Marsh persuasive in the chapter 13 context also. The debtor in the instant case had prior to the July 6,1994, hearing instituted five adversary proceedings — success in one of which was designated to provide funds to satisfy his wife’s alleged" } ]

[ { "docid": "21315559", "title": "", "text": "fees for independent contractor work. She has never made sufficient income to make her regular monthly mortgage payments. Her post-petition income is not sufficiently stable and regular to enable her to make payments under a Chapter 13 plan. Neither the rental income nor the independent contractor income constitutes regular income. The Debtor has no disposable income for funding a plan. The Plan payments are insufficient to pay the Debtor’s regular monthly mortgage payments and pre-petition arrearages. Her regular monthly Litton loan payment is approximately $4,000.00 and she proposes to pay Litton only $500.00 per month. Her regular monthly Washington Mutual Bank loan payment for the Orlando Property is $756.37 and she proposes to pay this first-priority secured creditor only $50.00 per month. The mortgage arrearage figures contained in the Plan are substantially less than the actual arrearage amounts contained in the secured creditors’ claims. The Plan fails to provide for full payment of the creditors’ secured claims. The Plan payments are insufficient to pay the Debtor’s unsecured creditors in full and she has no intention of paying those creditors. The Debtor intends to pay only her secured creditors through a settlement of the Ranch litigation. The Debtor’s purpose in filing the bankruptcy case was to avoid the completion and closing of the auction, sell the Ranch, and use the proceeds to purchase a new home with no encumbrances. The Debtor does not intend to pay any of her unsecured creditors. The unsecured creditors would fare far better if the estate were liquidated in a Chapter 7 case. The Plan fails to provide any details as to how and when the Debtor intends to sell the Ranch and what the term “property” means as used in the Plan. The Plan fails to delineate when the creditors’ claim balances are to be paid in full after the initial twelve-month Plan period expires. The Debtor did not file this case in good faith. She had the ability to pay her creditors through the auction sale, but, unhappy with the auction results, filed for bankruptcy. She filed this case to frustrate her secured creditors’" }, { "docid": "4674565", "title": "", "text": "income’ means individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under Chapter 13 of this Title. This Court sees the operative statutory language as being that which requires a debtor’s income to be “sufficiently stable and regular to enable ...” the debtor to make payments under a Plan. It is against that standard that this Debtor’s earning capacity and ability to pay must be measured in order to determine whether he qualifies as a Debtor under Chapter 13. “The debtor must demonstrate that he will have income to make the payments under the plan.” (Emphasis added.) In re Mozer, 1 B.R. 350 (Bankr.D.Colo.1979). This Court concludes after evaluating the history and status of this Debtor that he does not qualify as an individual whose income is sufficiently stable and regular to enable him to be a Chapter 13 Debtor or to make payments under a Chapter 13 Plan. Income that is “sufficiently stable and regular ...” as prescribed by Section 101(29) of the Code, must be income, or more accurately an income stream, that is to a substantial degree reliable and certain in amount and sufficient to fund payments for the term of a Plan. It should be reasonably predictable and dependable. In this case, the Debtor’s income flow is expected to be significantly interrupted, if not terminated, in October when his full-time employment ceases due to its seasonal nature. His subsequent expected unemployment benefits and odd jobs (interim employment at best) is neither predictable nor dependable. His income flow is not reliable and it is not reasonably certain as to amount. His wife’s employment, admitted to be irregular and unreliable, is not an element in the Debtor’s financial situation which might contribute to Debtor’s income as being regular and stable. If anything, her employment and income history compound the problems. The Debtor and his wife unfortunately demonstrate a pattern of employment and income which is neither regular, stable, reliable nor dependable. It is insufficient to qualify the Debtor under Chapter 13 of the Bankruptcy Code. This Court is well" }, { "docid": "1107352", "title": "", "text": "question in two contexts. Several courts analyze this issue as one of eligibility for relief under Chapter 13. Other courts focus on the “feasibility” of such partial liquidation plans. Each of these matters will be discussed below. A. Eligibility For Relief Section 109(e) of the Code, which governs eligibility for Chapter 13 relief, provides in pertinent part as follows: “Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of $100,000 and noncontingent, liquidated, secured debts of less than $350,000, ... may be a debtor under Chapter 13 of this title.” 11 U.S.C. § 101(24) defines an individual with regular income as an: “individual whose income is sufficiently stable and regular to enable such an individual to make payments under Chapter 13 of this title.” Several reported decisions consider the question of whether debtors who are required to liquidate property in order to generate sufficient income to fund a Chapter 13 plan qualify as “individuals with regular income” as defined in § 101(24). See, e.g., In re Ratmansky, 7 B.R. 829 (Bankr.E.D.Pa.1980); Matter of Moore, 17 B.R. 551 (Bankr.M.D.Fla.1982). One court has gone so far as to hold that because § 1322(b)(8) specifically authorizes a debtor to fund his plan through the liquidation of existing assets, the debtor “need not have a regular source of income.” In re Ratmansky, 7 B.R. at 832. However, as noted by a respected commentator, the courts which have read § 1322(b)(8) in a manner which eliminates the regular income requirement of § 109(e) have gone too far: Certainly, Congress intended to permit debtors to fund, at least in part, Chapter 13 plans by liquidating exempt and nonexempt property. Nevertheless, to the extent that a court may have suggested that a debtor need not have regular income if that debtor intends to fund a Chapter 13 plan solely through the sale of assets pursuant to § 1322(b)(8), that analysis is erroneous. On the other hand, if the suggestion is that the debtor need not have a regular source of income, in the sense that" }, { "docid": "2113995", "title": "", "text": "income tax purposes, these few indicators are not persuasive compared with the volley of indicators of a security. Each case must turn on its own facts and on balance we find the lease in this case was but a disguised security interest. This holding, however, does not end our inquiry for we find the debtors’ plan cannot be confirmed for other significant reasons appropriately raised by the creditors. First, we have serious questions regarding the debtors’ compliance with requirement to prove a regular and stable income to be eligible as a Chapter 13 debtor. 11 U.S.C. § 109(e). At the hearing the testimony was that Mrs. Tucker was disabled and was currently receiving disability payments. No testimony was received which would indicate how long these payments would continue or allay other possible contingencies which would negatively impact upon this prospective income source. Compare In re Devall, 9 B.R. 41 (Bkrtcy.M.D.Ala.1980). (Social Security benefits found sufficient to allow debtor to work out Chapter 13 plan). For the foreseeable future Mr. Tucker is not expected to work in his skilled field as a machinist, but is resigned to perform laborers’ tasks. Since the filing' of the petition he has changed jobs due to his employer’s terminating business, and at the hearing could speak only of part-time employment at his new job. Section 101(24) of the Code defines “individual with regular income” to mean one whose income is sufficiently stable and regular to enable such individual to make payments under a plan. Although the regular and stable income provision should be liberally construed, we hesitate to rely on mere hopes of maintaining employment. Our determination of what constitutes “regular income” is not limited to the date of filing the petition, but may properly be viewed prospectively. In re Troyer, 24 B.R. 727 (Bkrtcy.N.D.Ohio 1982). Thus our concern becomes not one of simply fluctuations of income, but whether there will be any reliable income to fund the proposed plan. It is incumbent upon a Chapter 13 debtor to sufficiently demonstrate an ability to fund the plan from sources which are stable and regular. In" }, { "docid": "1193284", "title": "", "text": "B.R. 257, 262 (Bankr.W.D.Okla.1983), the Court added that: Our determination of what constitutes “regular income” is not limited to the date of filing the petition, but may be viewed prospectively. In re Troyer, 24 B.R. 727 (Bankr.N.D.Ohio 1982). Thus, our concern becomes not one of simply fluctuations of income, but whether there will be any reliable income to fund the plan. In the instant case, the Court cannot conclude that the debtor does not have sufficiently stable and regular income to fund the Chapter 13 plan. His testimony, and the agreement for use of the equipment by High Grade, indicate that he is to receive $1,550.00 per week. Moreover, his testimony, as well as that of Mr. Dillon’s, demonstrates that High Grade is an on-going business that has secured a potentially lucrative contract for the farming of timber. On the basis of this evidence, the Court finds that the debtor has sufficiently stable and regular income. II. Nature of the Petition John Deere argues that the debtor’s plan is actually filed as a plan for the partnership, and therefore the debtor is ineligible for relief. John Deere states that the debtor’s plan is designed to procure the benefits of Chapter 13 for the partnership, as opposed to the debtor, in contravention of 11 U.S.C. § 109(e). In support of its argument, John Deere contends that the agreement between the debtor and High Grade, and the testimony of Mr. Dillon, demonstrate that the John Deere equipment is considered an asset of the partnership. Mr. Dillon testified that the equipment would become property of the partnership when the note was paid in full. The debtor testified that the equipment was not property of the partnership, but belonged to him. He also testified that the agreement for use of the equipment executed between himself and High Grade was made in contemplation of filing under Chapter 13, and was made so as to formalize the terms for High Grade’s use of the equipment, which had been occurring for several months prior to the execution of the agreement. The debtor further testified that if he" }, { "docid": "7242688", "title": "", "text": "intent to include even certain non-employed persons, provided that income was sufficiently stable and regular)); see also In re Sigfrid, 161 B.R. at 222 (determining that where debtor is unemployed, debtor must establish that the source of the payment, such as a non-debtor spouse’s income, is sufficiently stable and regular and such a determination is made on a case-by-case basis); In re Rowe, 110 B.R. 712, 718 (Bankr.E.D.Pa.1990) (finding debtor’s receipt of $200 a month from her son constituted stable and regular income). The Court holds that the Debtor has shown that he has, based on Mrs. Antoine’s contributions, “income that is sufficiently stable and regular” to meet the eligibility requirements imposed by sections 109(e) and 101(30) of the Bankruptcy Code. Mrs. Antoine has significant earnings from her employment which, as her affidavit states, she has promised to contribute to the payment of the Debtor’s expenses and Chapter 13 plan obligations. The parties have a long history of mutual support and a stable marital relationship. Furthermore, both “enlightened self-interest” and a legal duty provide Mrs. Antoine with incentives to make good on her undertaking. Mrs. Antoine resides in, and is co-obligor on the mortgage covering, the marital residence and thus has an interest in making payments sufficient to cure the mortgage defaults and preclude foreclosure. Moreover, Mrs. Antoine has a legal duty to provide spousal support. Section 412 of the New York State Family Court Act provides: A married person is chargeable with the support of his or her spouse and, if possessed of sufficient means or able to earn such means, may be required to pay for his or her support a fair and reasonable sum, as the court may determine, having due regard to the circumstances of the respective parties. Spousal support obligations have been recognized by other courts as significant in determining whether a debtor has “regular income” when a non-debtor spouse’s contributions are necessary to fund a plan. See In re Cohen, 13 B.R. at 356 (“the state of matrimony imposes its own obligations”); In re Varian, 91 B.R. at 654-655 (contribu tions by debtor’s spouse" }, { "docid": "3958909", "title": "", "text": "a debt arises out of a tort, it is not necessarily contingent. See also Matter of McGovern, 122 B.R. at 716. Ristic’s debt to Heritage is also liquidated. In re Sylvester, 19 B.R. at 673, states: The concept of liquidation has been variously expressed. The common thread ... has been ready determination and precision in computation of the amount due.... Some cases have stated the test as whether the amount due is capable of ascertainment by reference to an agreement or by simple computation. In the case at bar, only property damages are involved. While certain types of damages cannot be readily computed because they involve pain and suffering, permanent injury or punitive damages, that is not the situation here. Heritage’s claim became liquidated when it paid $124,482 to Kaniew-ski. INDIVIDUAL WITH REGULAR INCOME Under § 109(e), only an individual with regular income qualifies as a chapter 13 debtor. § 101(30) defines an “individual with regular income” as “an individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under chapter 13.” Although the definition of an individual with regular income is broad, there are, nonetheless, limitations. Ristic has no control over the work he is assigned while in prison or whether such work will continue. He lacks the steady and reliable source of income needed to fund his chapter 13 plan. In order for income to be “sufficiently stable and regular,” it must be an income stream that is to a substantial degree reliable and certain in amount and sufficient to fund payments for the term of the plan. It must, therefore, be reasonably predictable and dependable. See In re Hickman, 104 B.R. 374, 376 (Bankr.D.Colo.1989). That is not the case here. CONCLUSION Based upon the totality of the circumstances of this particular case, Ristic has not met the good faith criteria under § 1325(a)(3) with respect to his petition and plan. Therefore, his chapter 13 case must be dismissed for cause pursuant to § 1307(c). Ristic is also presently ineligible for chapter 13 relief because his total non-contingent, liquidated unsecured" }, { "docid": "1193283", "title": "", "text": "proposes to pay creditors over a period exceeding 36 months in contravention of 11 U.S.C. § 1322(c). I. Sufficiently Stable and Regular Income The debtor’s partner, Mr. Dillon, testified that in 1986, High Grade suffered a loss in the approximate amount of $308,000 due to the spoliation of timber and inattentiveness to the business resulting from a family tragedy. He further testified that, despite this loss, the prospects for success of High Grade are good in light of a recent contract to lumber a large tract of timber. He testified that the proceeds from this and other logging operations would be sufficient to make the payments required under the agreement for use of the debtor’s equipment which payments would then be used to fund the Chapter 13 plan. The phrase “regular income” under 11 U.S.C. § 109(e) is to be interpreted liberally so as to include sources of income other than just wages. In re Campbell, 38 B.R. 193 (Bankr.E.D.N.Y.1984); In re Wilhelm, 6 B.R. 905 (Bankr.E.D.N.Y.1980). In the case of In re Tucker, 34 B.R. 257, 262 (Bankr.W.D.Okla.1983), the Court added that: Our determination of what constitutes “regular income” is not limited to the date of filing the petition, but may be viewed prospectively. In re Troyer, 24 B.R. 727 (Bankr.N.D.Ohio 1982). Thus, our concern becomes not one of simply fluctuations of income, but whether there will be any reliable income to fund the plan. In the instant case, the Court cannot conclude that the debtor does not have sufficiently stable and regular income to fund the Chapter 13 plan. His testimony, and the agreement for use of the equipment by High Grade, indicate that he is to receive $1,550.00 per week. Moreover, his testimony, as well as that of Mr. Dillon’s, demonstrates that High Grade is an on-going business that has secured a potentially lucrative contract for the farming of timber. On the basis of this evidence, the Court finds that the debtor has sufficiently stable and regular income. II. Nature of the Petition John Deere argues that the debtor’s plan is actually filed as a plan for" }, { "docid": "14831226", "title": "", "text": "257 (Bankr.W.D.Okl.1983); In re Bradley, 18 B.R. 105 (Bankr.D.Vt.1982); In re Moore, 17 B.R. 551 (Bankr.M.D.Fla.1982). In considering whether or not a debtor has produced evidence of sufficiently stable regular income to fund a Chapter 13 plan, the courts have construed this requirement liberally, but have not considered high hopes for, and expectations of, obtaining prospective employment or income as a substitute for the existence of stable income. It is incumbent upon a Chapter 13 debtor to sufficiently demonstrate an ability to fund the plan from sources which are stable and regular. In re Tucker, 34 B.R. at 262. If a debtor does not produce credible evidence of the existence of a regular income, the debtor does not qualify for Chapter 13 relief under 11 U.S.C. § 109(e). In re Wilhelm, 6 B.R. 905, 908 (Bankr.E.D.N.Y.1980). There must be some factual basis for the court to determine the regularity and stability of the debtor’s income. In re Mozer, 1 B.R. 350, 352 (Bankr.D.Colo.1979). The debtor in this case has failed to produce any evidence of a stable income or that his future prospects for achieving a regular and stable income are good. Indeed, his past history which reflects a disbarment as an attorney, incarcerations for criminal and civil contempt and no visible income during the past two years does not bode well for the future: In the instant case, Troyer is presently unemployed and has no prospects of employment. He has no present income from any source. Moreover, it is likely that he will receive jail sentences on the violations of state and federal law to which he has agreed to plead guilty. When he would be released from jail is a matter of complete speculation at this time. As such, whether this Court looks solely to the date of the filing of the petition or looks into the future, Troyer is not an individual with income sufficiently stable and regular to make Chapter 13 payments. In re Troyer, 24 B.R. 727, 730 (Bankr.N.D.Oh.1982). The debtor in this case has not produced any credible evidence to form a factual basis" }, { "docid": "13831676", "title": "", "text": "at 24 (1978); see H.REP. No. 95-595, at 311-12 (1977); Bibb County Dept of Family & Children Serv. v. Hope (In re Hammonds), 729 F.2d 1391, 1393 (11th Cir.1984) (stating “purpose of term ‘individual with regular income’ is to permit almost any individual with regular income to ... have approved a reasonable plan for debt repayment based on that individual’s exact circumstances.”); In re Campbell, 38 B.R. at 195 (where family member jointly liable on debt, that nondebtor individual’s income found to be sufficiently stable and regular to conditionally confirm plan); In re Murray, 199 B.R. 165 (Bankr.M.D.Tenn.1996) (noting social security benefits can be regular income); In re Tucker, 34 B.R. 257 (Bankr.W.D.Okla.1983) (noting disability benefits can be regular income); In re Cole, 3 B.R. at 348 (holding odd jobs can be source of regular income); In re Sigfrid, 161 B.R. 220 (Bankr.D.Minn.1993) (nonfiling spouse’s income can be regular income); In re Rowe, 110 B.R. 712, 718 (Bankr.E.D.Pa.1990) (finding debtor’s receipt of $200.00 a month from her son constituted stable and regular income). Therefore, the test for “regular income” is not the type or source of income, but rather its regularity and stability. In re Varian, 91 B.R. at 654 (citing In re Campbell, 38 B.R. 193, 195 (Bankr.E.D.N.Y.1984)). As such, courts have held that an individual with sources of income other than wages is qualified to propose a Chapter 13 plan if “the flow of funds is shown to be sufficiently regular and stable to enable payments to be made under a plan.” In re Varían, 91 B.R. at 654 (husband’s commitment to pay $230.00 per month to fund plan is found to be “regular income” to debtor wife); In re Ellenburg, 89 B.R. 258, 260 (Bankr.N.D.Ga.1988) (finding debtor’s receipt of $500.00 per month for providing bookkeeping services to husband constitutes sufficient regular income). Preliminarily, the Court notes that § 109(e) does not state the date that the regular income requirement is determined. See 11 U.S.C. § 109(e). The most consistent view is that the presence of regular income should be the date of the petition. However, it has" }, { "docid": "1107353", "title": "", "text": "e.g., In re Ratmansky, 7 B.R. 829 (Bankr.E.D.Pa.1980); Matter of Moore, 17 B.R. 551 (Bankr.M.D.Fla.1982). One court has gone so far as to hold that because § 1322(b)(8) specifically authorizes a debtor to fund his plan through the liquidation of existing assets, the debtor “need not have a regular source of income.” In re Ratmansky, 7 B.R. at 832. However, as noted by a respected commentator, the courts which have read § 1322(b)(8) in a manner which eliminates the regular income requirement of § 109(e) have gone too far: Certainly, Congress intended to permit debtors to fund, at least in part, Chapter 13 plans by liquidating exempt and nonexempt property. Nevertheless, to the extent that a court may have suggested that a debtor need not have regular income if that debtor intends to fund a Chapter 13 plan solely through the sale of assets pursuant to § 1322(b)(8), that analysis is erroneous. On the other hand, if the suggestion is that the debtor need not have a regular source of income, in the sense that the debtor could have several alternate sources of income, then the court’s suggestion would not necessarily be erroneous. In that instance the court would be faced with determining whether the alternative sources of income are sufficiently stable and regular so as to meet the § 101(24) definition. With that caveat, the authors must side with the cases which take into account the existence of § 1322(b)(8) in determining whether a particular petitioner is an individual with regular income. Sections 101(24) and 1322(b)(8) should be read together to permit a petitioner whose income is sufficient to satisfy current debts to obtain Chapter 13 relief if that petitioner proposes to fund a Chapter 13 plan out of the sale or disposition of other assets. If, however, the petitioner’s income is not sufficient to maintain a level or positive cash flow, then that individual’s financial problems are probably more than Chapter 13 can handle. W.H. Drake, Jr. & J. Morris, Chapter 13 Practice and Procedure § 3.12 at 3-28 (1986). The debtors in the cases sub judice have" }, { "docid": "8400354", "title": "", "text": "As Regular Income Of The Debtor. The initial question before the Court is whether Mrs. Bottelberghe’s willingness and commitment to partially fund her husband’s plan payment constitutes regular income of the debtor. Eligibility under Chapter 13 begins with 11 U.S.C. § 109(e), which provides that “[o]nly an individual with regular income ... may be a debtor under chapter 13 of this title.” An “[ijndividual with regular income” is defined in the Bankruptcy Code as an “individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan.... ” See 11 U.S.C. § 101(30). “The test for regular income is not the type or source of income, but rather its regularity and stability.” See In re Sigfrid, 161 B.R. 220, 221 (Bankr.D.Minn.1993) (citations omitted). Indeed, many courts have addressed a variety of nontraditional sources of income and concluded the same to be “sufficiently regular and stable to support a plan,” including AFDC payments, certain payments from family members, and even recurring odd jobs. Id. In recognizing that “Congress intended the term ‘regular income’ as used in sections 101(30) and 109(e), to be interpreted broadly,” courts have found sufficient income in cases of support derived from “welfare, pensions, investment income, [and] self-employment.” See In re Antoine, 208 B.R. 17, 19 (Bankr.E.D.N.Y.1997) (citations omitted). One court described the “plain language of the Code” regarding regular income as “outcome determinative,” and thereby found that a seven year old debtor receiving social security survivor benefits was an individual with regular income eligible for Chapter 13 relief because the result would be that the debtor had the necessary income to fund the proposed plan. See In re Murray, 199 B.R. 165, 170 (Bankr.M.D.Tenn.1996). Noting that the legislative history indicated that “Chapter 13 relief is available to any individual with a stable and regular income whether it is social security recipients, self-employed people, pensioners, farmers, or professionals,” the court in In re McMonagle determined that joint debtors receiving unemployment compensation and working only part-time, respectively, qualified as individuals with regular income for purposes of Chapter 13 eligibility. See In re McMonagle," }, { "docid": "14831225", "title": "", "text": "debtor has regular income, the courts need not look solely to wages because the legislative history indicates that investments, pensions, Social Security or welfare must also be considered. See H.R.Rep. No. 595, 95th Cong., 1st Sess. 321 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Thus, Social Security payments have been treated as regular income. Hildebrand v. The Social Security Administration (In re Buren), 725 F.2d 1080 (6th Cir.1984), cert. denied 469 U.S. 818, 105 S.Ct. 87, 83 L.Ed.2d 34 (1984). Similarly, Welfare benefits qualify as regular income for purposes of Chapter 13. Bibb County Department of Family & Children Services v. Hope (In re Hammonds), 729 F.2d 1391 (11th Cir.1984). Unemployment benefits will also qualify as regular income. In re Overstreet, 23 B.R. 712 (Bankr.W.D.La.1982). It has been held that in determining a debtor’s ability to establish a regular income, courts need not look solely at the time when the petition whs filed, but may look beyond the petition date if such time is more favorable to the debtor. In re Tucker, 34 B.R. 257 (Bankr.W.D.Okl.1983); In re Bradley, 18 B.R. 105 (Bankr.D.Vt.1982); In re Moore, 17 B.R. 551 (Bankr.M.D.Fla.1982). In considering whether or not a debtor has produced evidence of sufficiently stable regular income to fund a Chapter 13 plan, the courts have construed this requirement liberally, but have not considered high hopes for, and expectations of, obtaining prospective employment or income as a substitute for the existence of stable income. It is incumbent upon a Chapter 13 debtor to sufficiently demonstrate an ability to fund the plan from sources which are stable and regular. In re Tucker, 34 B.R. at 262. If a debtor does not produce credible evidence of the existence of a regular income, the debtor does not qualify for Chapter 13 relief under 11 U.S.C. § 109(e). In re Wilhelm, 6 B.R. 905, 908 (Bankr.E.D.N.Y.1980). There must be some factual basis for the court to determine the regularity and stability of the debtor’s income. In re Mozer, 1 B.R. 350, 352 (Bankr.D.Colo.1979). The debtor in this case has failed to produce any evidence of" }, { "docid": "8400355", "title": "", "text": "term ‘regular income’ as used in sections 101(30) and 109(e), to be interpreted broadly,” courts have found sufficient income in cases of support derived from “welfare, pensions, investment income, [and] self-employment.” See In re Antoine, 208 B.R. 17, 19 (Bankr.E.D.N.Y.1997) (citations omitted). One court described the “plain language of the Code” regarding regular income as “outcome determinative,” and thereby found that a seven year old debtor receiving social security survivor benefits was an individual with regular income eligible for Chapter 13 relief because the result would be that the debtor had the necessary income to fund the proposed plan. See In re Murray, 199 B.R. 165, 170 (Bankr.M.D.Tenn.1996). Noting that the legislative history indicated that “Chapter 13 relief is available to any individual with a stable and regular income whether it is social security recipients, self-employed people, pensioners, farmers, or professionals,” the court in In re McMonagle determined that joint debtors receiving unemployment compensation and working only part-time, respectively, qualified as individuals with regular income for purposes of Chapter 13 eligibility. See In re McMonagle, 30 B.R. 899, 902 (Bankr.D.S.D.1983), citing H.R.Rep. No. 95-595, 2d Sess. 118-19 (1977), U.S.Code Cong. & Admin.News 5963, 6078-6080 (1977). In most cases where courts have found nontraditional sources of debtor support to fail the Chapter 13 regular income test, it was because the nature of the income was found to be gratuitous, unreliable or lacking evidence of the requisite stability and regularity. See, e.g., In re Crowder, 179 B.R. 571, 574 (Bankr.E.D.Ark.1995) (social security benefits not sufficiently regular because payments scheduled to terminate in eleven months, and proposed contributions from parent also insufficient because amount and duration of payments unknown); In re Jordan, 226 B.R. 117, 119 (Bankr.D.Mont.1998) (gratuitous payments to a debtor from family members or third parties do not constitute regular income unless joint liability for debts exists, there is a legal obligation to contribute to the support of'the debtor, or there is direct evidence of the assent of the third party to assume responsibility for payments to the debtor); In re Hanlin, 211 B.R. 147, 148 (Bankr.W.D.N.Y.1997) (able-bodied unmarried debtor whose" }, { "docid": "7242687", "title": "", "text": "duties arising from matrimony). The Trustee, apparently focusing on the source or type, rather than the regularity, of the income supporting the plan, argues that the eases in which plans based on family contributions have been allowed are distinguishable because in most instances the debt- or had some conventional source of income in addition to the family contributions. This is a distinction without a legally significant difference. In none of those cases would the debtor’s other income, standing alone, have been sufficient to fund the plan payments as well as the debtor’s other expenses; unless the third party contributions constituted “income,” there would have been no basis for confirmation. The benchmark for determining whether an individual has “regular income” for putposes of section 101(30) of the Bankruptcy Code is not the type or source of income, but “its stability and regularity.” In re Fischel, 103 B.R. at 48; In re Varian, 91 B.R. at 654; In re Campbell, 38 B.R. at 195 (quoting In re Cole, 3 B.R. 346, 349 (Bankr.S.D.W.Va.1980) (Congress made clear its intent to include even certain non-employed persons, provided that income was sufficiently stable and regular)); see also In re Sigfrid, 161 B.R. at 222 (determining that where debtor is unemployed, debtor must establish that the source of the payment, such as a non-debtor spouse’s income, is sufficiently stable and regular and such a determination is made on a case-by-case basis); In re Rowe, 110 B.R. 712, 718 (Bankr.E.D.Pa.1990) (finding debtor’s receipt of $200 a month from her son constituted stable and regular income). The Court holds that the Debtor has shown that he has, based on Mrs. Antoine’s contributions, “income that is sufficiently stable and regular” to meet the eligibility requirements imposed by sections 109(e) and 101(30) of the Bankruptcy Code. Mrs. Antoine has significant earnings from her employment which, as her affidavit states, she has promised to contribute to the payment of the Debtor’s expenses and Chapter 13 plan obligations. The parties have a long history of mutual support and a stable marital relationship. Furthermore, both “enlightened self-interest” and a legal duty provide Mrs." }, { "docid": "21315558", "title": "", "text": "monthly installment payments of between $50.00 and $500.00 with their claim balances to be paid through the sale of “property” and the “2300 Coral Hills Road property.” Unsecured creditors are to receive $25.00 per month for twelve months with the balance of their claims to be paid through the sale of the Ranch. The Plan is not feasible. The Debtor stated in Schedules I and J monthly income of $2,970.60 and monthly expenses of $6,762.00. Her monthly expenses exceed her monthly income by $3,791.60 on the Petition Date. She admits she had insufficient income on the Petition Date to make her mortgage payments. The Debtor had no disposable income on the Petition Date with which to fund the Plan. The Debtor’s financial standing further deteriorated in May 2006 when her employer The Cameron Group terminated her employment. She did not inform the Trustee or the Court of her change in income, nor did she amend Schedule I. The Debtor’s only income since termination is the sporadic, undocumented receipt of rent from a rental property and fees for independent contractor work. She has never made sufficient income to make her regular monthly mortgage payments. Her post-petition income is not sufficiently stable and regular to enable her to make payments under a Chapter 13 plan. Neither the rental income nor the independent contractor income constitutes regular income. The Debtor has no disposable income for funding a plan. The Plan payments are insufficient to pay the Debtor’s regular monthly mortgage payments and pre-petition arrearages. Her regular monthly Litton loan payment is approximately $4,000.00 and she proposes to pay Litton only $500.00 per month. Her regular monthly Washington Mutual Bank loan payment for the Orlando Property is $756.37 and she proposes to pay this first-priority secured creditor only $50.00 per month. The mortgage arrearage figures contained in the Plan are substantially less than the actual arrearage amounts contained in the secured creditors’ claims. The Plan fails to provide for full payment of the creditors’ secured claims. The Plan payments are insufficient to pay the Debtor’s unsecured creditors in full and she has no intention" }, { "docid": "3958910", "title": "", "text": "a plan under chapter 13.” Although the definition of an individual with regular income is broad, there are, nonetheless, limitations. Ristic has no control over the work he is assigned while in prison or whether such work will continue. He lacks the steady and reliable source of income needed to fund his chapter 13 plan. In order for income to be “sufficiently stable and regular,” it must be an income stream that is to a substantial degree reliable and certain in amount and sufficient to fund payments for the term of the plan. It must, therefore, be reasonably predictable and dependable. See In re Hickman, 104 B.R. 374, 376 (Bankr.D.Colo.1989). That is not the case here. CONCLUSION Based upon the totality of the circumstances of this particular case, Ristic has not met the good faith criteria under § 1325(a)(3) with respect to his petition and plan. Therefore, his chapter 13 case must be dismissed for cause pursuant to § 1307(c). Ristic is also presently ineligible for chapter 13 relief because his total non-contingent, liquidated unsecured debts are greater than $100,000 and because he does not meet the “regular income” requirement. For all of these reasons, the motions of the chapter 13 trustee and Heritage are sustained. An order will be entered dismissing this case. This decision shall constitute this court’s findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure. . Nothing in the criminal sentence requires Ristic to make restitution to Heritage. . On June 17, 1992, the court received written notification from the debtor’s attorney that the debtor was transferred to the Drug Abuse Correctional Center, Winnebago, Wisconsin. . At the May 8, 1992 hearing, Ristic testified that he inadvertently omitted an unsecured debt to DePaul Hospital in the sum of $184. The court accepts his statement. This particular debt, being relatively minimal, has no bearing upon this decision." }, { "docid": "20028787", "title": "", "text": "court’s inclusion of some hypothetical amount of income from the IRAs in the calculation of disposable income. “[R]ather than engaging in hopeless speculation about the future,” a court should determine projected disposable income by calculating a debtor’s “present monthly income and expenditures” and extending those amounts over the life of the plan. In re Crompton, 73 B.R. 800, 808 (Bankr.E.D.Pa.1987). Solomon’s present, regular monthly income does not include distributions from his IRAs, and the bankruptcy court’s imputation of amounts from such speculative distributions in its calculation of disposable income is contrary to the plain terms of the statutory definition. Cases such as In re Schnabel, 153 B.R. 809 (Bankr.N.D.Ill.1993), and In re Hagel, 171 B.R. 686 (Bankr.D.Mont.1994), are distinguishable: they involved debtors who, at the time the bankruptcy petition was filed, were receiving regular monthly pension or social security payments. Schnabel, 153 B.R. at 812; Hagel, 171 B.R. at 687 & n. 3. In this case, by contrast, Solomon receives no regular distributions from his IRAs, has indicated no intent to take such distributions during the life of the Chapter 13 plan, and is not required to do so by the Internal Revenue Code until he reaches age 10% See 26 U.S.C. § 408(a)(6); 26 C.F.R. § 1.408-2(b)(6). Schnabel and Hagel thus do not require that these accounts be treated as a source of hypothetical income regularly received by Solomon. B. Although they are not a source of regular, periodic income, Solomon’s IRAs are assets of the estate, much like a checking or savings account. See Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1226 (8th Cir.1987) ($6,000 lump-sum payment from retirement fund, which Chapter 13 debtor transferred into IRA, was asset of the estate rather than disposable income); see also Official Bankr. Form 6, Schedule B (Personal Property) (listing “[interests in IRA, ERISA, Keogh, or other pension or profit sharing plans” as personal property of the debtor); Official Bankr. Form 6, Summary of Schedules (debtor’s real and personal property constitute assets of the estate). In fact, Solomon listed each of his IRAs as personal property in the schedules submitted" }, { "docid": "4674566", "title": "", "text": "be income, or more accurately an income stream, that is to a substantial degree reliable and certain in amount and sufficient to fund payments for the term of a Plan. It should be reasonably predictable and dependable. In this case, the Debtor’s income flow is expected to be significantly interrupted, if not terminated, in October when his full-time employment ceases due to its seasonal nature. His subsequent expected unemployment benefits and odd jobs (interim employment at best) is neither predictable nor dependable. His income flow is not reliable and it is not reasonably certain as to amount. His wife’s employment, admitted to be irregular and unreliable, is not an element in the Debtor’s financial situation which might contribute to Debtor’s income as being regular and stable. If anything, her employment and income history compound the problems. The Debtor and his wife unfortunately demonstrate a pattern of employment and income which is neither regular, stable, reliable nor dependable. It is insufficient to qualify the Debtor under Chapter 13 of the Bankruptcy Code. This Court is well aware that certain non-traditional income sources can qualify as sufficiently regular and stable to support Chapter 13 debtors. Legislative history and case law amply support the proposition that “individuals on welfare, social security, fixed pension income, or who live on investment incomes” may qualify for Chapter 13. In re Hammonds, 729 F.2d 1391, 1393 (11th Cir.1984). Public assistance income may well allow, or contribute to allowing, an individual to qualify for Chapter 13. This would also include, in this Court’s opinion, public assistance in the nature of unemployment benefits. Nonetheless, this Debtor still does not have employment and income, coupled with public assistance and supplemented with the income of his wife, sufficiently regular and stable to qualify for Chapter 13. In order to have a plan confirmed under Chapter 13, a debtor must also meet the qualifications of 11 U.S.C. § 1325. Section 1325(a)(6) sets forth the criteria for confirmation of a Plan and requires that' “the debtor will be able to make all payments under the plan and to comply with the plan.” The" }, { "docid": "16767557", "title": "", "text": "the only source of collateral available to satisfy the secured claimant’s debt. The PCA also has a security interest in the debtors’ land. In fact, the combined security interests in the land and the proceeds may have made PCA an over-secured creditor at the beginning of the case. In Lellock the secured creditor had only one source to look to for security of its claim. That source had to satisfy the entire amount of the claim. Also, in Lellock the SBA was not even included in the list of creditors. SBA then had no opportunity to protect or even assert its interest in the bankruptcy proceeding. . The court, however, went on to find that since the debtor already voluntarily had paid an amount exceeding the exemptible portion of the funds into the plan, the debtor would not need to pay any additional sum into the plan. . In support of such an argument, PCA also has asserted that items which do not qualify as income under the tax laws do not qualify as income under the disposable income test. The only case which PCA cites to support that contention is In re Schyma, 68 B.R. 52 (Bankr.D.Minn.1985). PCA believes this case can be read to the effect that gratuitous payments the debtor received, exempt under the tax definition of income, were therefore exempted from income for the purposes of disposable income. The court stated, however, that “sporadic gratuitous assistance ... is not, of itself, regular or disposable income for Chapter 13 purposes.” 68 B.R. at 63 (emphasis added). In reaching that conclusion the Schyma court relied on In re Campbell, 38 B.R. 193, 196 (Bankr.E.D.N.Y.1984), which found that gratuitous payments were not sufficient to be \"regular income” for the purposes of qualification for Chapter 13 relief. This Court believes that the Schyma case too was more concerned with the regularity of the payments than whether they were \"gross income\" under the Tax Code." } ]

[ { "docid": "21566166", "title": "", "text": "public school teacher who belonged to a subversive organization. Justice Frankfurter dissented, arguing that the Court lacked jurisdiction because the plaintiffs lacked standing. With respect to the taxpayer-plaintiffs, Frankfurter argued that under Doremus they did not have standing because the taxpayers could not show that their tax burden would be increased. Adler, 342 U.S. at 501-02, 72 S.Ct. at 389 (Frankfurter, J., dissenting). The other eight justices ignored Justice Frankfurter’s arguments and reached the merits. In Chambers v. Marsh, 675 F.2d 228 (8th Cir.1982), we relied on Flast in holding that Chambers had standing as a state taxpayer. The Supreme Court affirmed on standing, writing: “[W]e agree that Chambers, as a member of the legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim.” Marsh v. Chambers, 463 U.S. 783, 786 n. 4, 103 S.Ct. 3330, 3333 n. 4, 77 L.Ed.2d 1019 (1983). No showing of an increased tax burden was ever made, nor did our reliance on Flast meet with disapproval. The only case relied on by the district court for its view of Doremus, is Hoohuli v. Ariyoshi, 741 F.2d 1169 (9th Cir.1984). Hoohuli, however, does not hold that an increase in the plaintiff's tax burden is required. In fact, that court noted that the injury analysis required under Flast and Doremus was the same. Id. at 1179. Hoohuli found standing because the plaintiffs attacked specific disbursements and requested the money be returned to the state treasury. Id. at 1172, 1180. Our interpretation of Doremus is buttressed by the fear that the district court’s decision could lead to the abolition of taxpayer standing altogether. Where a free exercise of religion injury is alleged, plaintiffs can argue that an activity they distinctly wish to engage in has been restricted. But only a taxpayer really suffers a distinct injury from the improper use of public money in violation of the establishment clause. The district court’s view would allow standing only where a special tax assessment was levied to pay for the expenditure. Thus, when expenditures are made from general funds, no" } ]

[ { "docid": "11648653", "title": "", "text": "taxpayer standing where taxpayer does not challenge the disbursement of state funds) (citing Doremus). However, Hoohuli, the leading case on this issue in the circuit, does not require that the taxpayer prove that her tax burden will be lightened by elimination of the questioned expenditure. See Minnesota Fed’n of Teachers v. Randall, 891 F.2d 1354, 1357 (8th Cir.1989) (following Hoohuli); cf. District of Columbia Common Cause v. District of Columbia, 858 F.2d 1, 5 (D.C.Cir.1988) (injury redressed by elimination of expenditure, rather than by decrease in taxation). This court has not previously ruled on the different injury requirements, if any, for municipal taxpayer standing, It seems to us, however, that the Doremus requirement of a pocketbook injury applies to municipal taxpayer standing as well as to state taxpayer standing. Doremus itself, while treating the specific question of state taxpayer standing, quoted a municipal taxpayer standing case for the proposition that a direct injury was necessary. See Doremus, 342 U.S. at 434, 72 S.Ct. at 397 (quoting Massachusetts (Frothingham), 262 U.S. at 448, 43 S.Ct. at 598). The Court in Doremus then harmonized its announced rule with a school district taxpayer case. See id. (discussing Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (assuming standing for school district taxpayer challenge of school board expenditures for transportation of parochial school students)). Subsequent cases have made clear that municipal taxpayer standing is only available when there is an expenditure of municipal funds challenged; courts in other circuits often have applied Doremus-Yike language to express this rule. See, e.g., District of Columbia Common Cause, 858 F.2d at 4 (explicitly applying the Doremus rule to municipal taxpayers); Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1469-70 (7th Cir.1988) (municipal taxpayers have standing to challenge the improper use of tax revenues but no standing where there has been no expenditure of city funds); Hawley v. City of Cleveland, 773 F.2d 736, 741-42 (6th Cir.1985) (municipal taxpayers may enjoin improper municipal expenditures), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Donnelly v. Lynch, 691" }, { "docid": "1308875", "title": "", "text": "funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.” Id. In other words, under Frothingham we presume a municipal taxpayer's relationship to the municipality is “direct and immediate” such that the taxpayer suffers concrete injury whenever the “challenged activity involves a measurable appropriation or loss of revenue.” District of Co lumbia Common Cause v. District of Columbia, 858 F.2d 1, 5 (D.C.Cir.1988). While this presumption may seem odd for municipalities with multi-billion dollar budgets, see Council Approves $29.5 Billion Budget, N.Y. Times, June 2,1992, at B2, so long as Frothingham states the law of the land, we are bound by it. Much has changed in federal standing jurisprudence since Frothingham. In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the Supreme Court overruled Frothingham’s blanket rejection of federal taxpayer standing and replaced it with a complex test requiring the taxpayer to show that the challenged action is an exercise of the taxing and spending powers and that the action violates “a specific constitutional limitation upon the exercise by Congress” of those powers. Id. 392 U.S. at 102-03, 88 S.Ct. at 1954. In Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952), the Court ruled that state taxpayers have standing only when bringing a “good-faith pocketbook action.” However, we see nothing in either case to convince us that Frothingham’s view of municipal taxpayer standing is not still good law. Other courts of appeals to consider the question have uniformly concluded that municipal taxpayers have standing to challenge allegedly unlawful municipal expenditures. See e.g., Cammack v. Waihee, 932 F.2d 765, 769-72 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 3027, 120 L.Ed.2d 898, 60 U.S.L.W. 3878 (June 29, 1992); Freedom From Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, 1469-70 (7th Cir.1988) (stating the general rule but finding no standing since no municipal expenditures); Hawley v. City of Cleveland, 773 F.2d 736, 741-2 (6th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89" }, { "docid": "387279", "title": "", "text": "for federal taxpayer standing announced in Frothingham control the issue of state taxpayer standing, at least in those cases where violation of the Establishment Clause is not alleged. The rule upholding municipal taxpayer standing appears to rest on the assumption that the relatively small number of taxpayers involved and the close relationship between residents of a municipality and their local government results in a direct and palpable injury whenever tax revenues are misused. Whatever the validity of that assumption with respect to the largest cities today, we believe it has no force when a state is the defendant and the plaintiffs sue as state taxpayers. In order to have standing, a state taxpayer must allege direct and palpable injury with sufficient specificity to meet the “good-faith pocketbook” requirement of Doremus. We respectfully disagree with the court’s conclusion in Hoohuli v. Ariyoshi, 741 F.2d 1169 (9th Cir.1984). The court in Hoohuli found that “[t]he pleadings set forth with specificity amounts of money appropriated and spent for allegedly unlawful purposes,” and that this satisfied the Doremus requirement. Id. at 1180. We believe more is required. A state taxpayer-plaintiff must tie such allegations of illegal appropriations and expenditures to a specific claim of some direct and palpable injury threatened or suffered. Doremus did not eliminate this requirement; in fact, the Court in Doremus emphasized it by quoting Frothingham concerning direct injury and the requirement that a taxpayer-plaintiff allege more than “merely that he suffers in some indefinite way in common with people generally.” 342 U.S. at 434, 72 S.Ct. at 396. We agree with the dissent in Hoohuli. As recent Supreme Court decisions have made clear, the restrictions on federal taxpayer standing prevent unwarranted intrusions by the courts into matters entrusted to the legislative and executive branches of the federal government. This separation of powers concern has a counterpoint which should be considered when a state taxpayer seeks to have a federal court enjoin the appropriation and spending activities of a state government. Considerations of federalism should signal the same caution in these circumstances as concern for preservation of the proper separation of" }, { "docid": "11648651", "title": "", "text": "2-3, Cammack v. Waihee, Civil No. 87-0260 (D.Haw. April 6, 1987). The complaint’s allegations include the assertion that $3.4 million in state tax revenues and $850,000 in city tax revenues are expended on the holiday. See id. at 7. The district court held that the plaintiffs had state taxpayer standing to challenge the Hawaii statute in federal court. See Cammack, 673 F.Supp. at 1527-28. The government argues that the district court erred. The district court did not reach the question of municipal taxpayer standing, but the issue is squarely presented on this record. We consider whether the plaintiffs below (and appellants here) have either state or municipal taxpayer standing to pursue this action in federal court. l The bedrock requirement for standing is that the challenger suffer “injury.” We first consider whether appellants, as state and'municipal taxpayers, have properly alleged an injury sufficient to endow them with taxpayer standing to challenge the Good Friday public holiday. This requires an examination of the injury requirements which pertain to each relevant form of taxpayer standing — state and municipal. The seminal state taxpayer standing ease is Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). In that case, the Supreme Court explained that a state taxpayer has standing to challenge a state statute when the taxpayer is able to show that he “ ‘has sustained or is immediately in danger of sustaining some direct injury as the result of [the challenged statute’s] enforcement.’ ” Id. at 434, 72 S.Ct. at 397 (quoting Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923) (also known as Frothingham v. Mellon)). The direct injury required by Doremus is established when the taxpayer brings a “good-faith pocketbook action”; that is, when the challenged statute involves the expenditure of state tax revenues. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1178 (9th Cir.1984) (pleadings must “set forth the relationship between taxpayer, tax dollars, and the allegedly illegal government activity”) (citing Doremus); see also Reimers v. State of Oregon, 863 F.2d 630, 632 n. 4 (9th Cir.1988) (no state" }, { "docid": "387278", "title": "", "text": "gallon on gasoline. The plaintiffs’ theory was that the effect of the statutes was to deprive all purchasers of gasoline of property without due process of law. In denying standing, the Court relied directly on Frothingham, quoting from that decision as follows: Frothingham v. Mellon, Sec’y of the Treasury, 262 U.S. 447, 487, 488 [43 S.Ct. 597, 601, 67 L.Ed. 1078], announces the applicable doctrine. “The administration of any statute, likely to produce additional taxation to be imposed upon a vast number of taxpayers, the extent of whose several liability is indefinite and constantly changing, is essentially a matter of public and not of inidividual concern.” The federal courts have no power per se to review and annul acts of state legislatures upon the ground that they conflict with the federal or state constitutions. “That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act.” Id. at 80, 50 S.Ct. at 63-64. V. We conclude that the requirements for federal taxpayer standing announced in Frothingham control the issue of state taxpayer standing, at least in those cases where violation of the Establishment Clause is not alleged. The rule upholding municipal taxpayer standing appears to rest on the assumption that the relatively small number of taxpayers involved and the close relationship between residents of a municipality and their local government results in a direct and palpable injury whenever tax revenues are misused. Whatever the validity of that assumption with respect to the largest cities today, we believe it has no force when a state is the defendant and the plaintiffs sue as state taxpayers. In order to have standing, a state taxpayer must allege direct and palpable injury with sufficient specificity to meet the “good-faith pocketbook” requirement of Doremus. We respectfully disagree with the court’s conclusion in Hoohuli v. Ariyoshi, 741 F.2d 1169 (9th Cir.1984). The court in Hoohuli found that “[t]he pleadings set forth with specificity amounts of money appropriated and spent for allegedly unlawful purposes,” and that this satisfied the Doremus requirement." }, { "docid": "7178841", "title": "", "text": "unconstitutional acts affecting public finances”), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Donnelly v. Lynch, 691 F.2d 1029, 1031 (1st Cir.1982) (no indication that Valley Forge intended to overrule cases establishing that municipal taxpayers have standing), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). 2. Elements of Municipal Taxpayer Standing a. Pocketbook Injury A taxpayer’s challenge to a state expenditure establishes a case or controversy “when it is a good-faith pocketbook action.” Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952). Doremus involved a challenge by state taxpayers to Bible reading in public schools. The Court recognized the distinction between municipal and federal taxpayer standing, but refused to accord standing to a state taxpayer absent evidence of “some direct injury,” id. (quoting Frothingham, 262 U.S. at 488, 43 S.Ct. at 601), i.e., a “measurable appropriation” of tax funds. Id. (discussing Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, (1947)). As Bible reading did not involve a “direct dollars-and-cents injury,” the taxpayers lacked standing. Id. One commentator has interpreted Doremus as requiring a taxpayer to challenge an activity involving an expenditure of public funds that would not otherwise be made. As the teachers in Doremus would be paid their salaries whether or not they read from the Bible, the challenged practice did not injure the taxpayers. See Note, Taxpayers’ Suits: A Survey and Summary, 69 Yale L.J. 895, 922 (1960). See also Bowen v. Kendrick, 108 S.Ct. at 2580 (“The AFLA is at heart a program of disbursement of funds pursuant to Congress’ taxing and spending powers, and appellees’ claims call into question how the funds authorized by Congress are being disbursed pursuant to the AFLA’s statutory mandate.”). Although Doremus involved only state taxpayers, the pocketbook injury requirement also applies to municipal taxpayers, as Doremus’ reference to Frothingham makes clear. For example, municipal taxpayers lack standing when they challenge a regulatory program that only incidentally involves expenditures of public funds. See e.g., Reich v. City of" }, { "docid": "1301721", "title": "", "text": "that satisfies the good-faith pocketbook requirement infrequently. In Hoohuli v. Ariyoshi, 741 F.2d 1169 (9th Cir.1984), the Ninth Circuit examined the issue of state taxpayer standing and concluded that the plaintiffs met the Doremus requirements. In Hoohuli, state taxpayers brought an action challenging a system established by the State of Hawaii that disbursed benefits to residents who had descended from aboriginal inhabitants of the islands. The taxpayers claimed that “their tax dollars were being spent on a program which disbursed benefits based on impermissible racial classifications.” Id. at 1172. After reviewing Frothingham and Doremus, the Ninth Circuit concluded that “[s]tate taxpayers could still maintain taxpayer suits if their pleadings were sufficient. They were sufficient if they set forth the relationship between taxpayer, tax dollars, and the allegedly illegal government activity.” Id. at 1178 (citation omitted). To reach this conclusion, the Ninth Circuit reviewed Flast and its progeny and found that because the Supreme Court did not discuss Doremus in the second part of the Flast nexus test, it implicitly distinguished between standing requirements for federal and state taxpayers. Id. at 1179. Thus, the Ninth Circuit decided that state taxpayer standing remained unchanged after Flast and must be guided by Doremus in its original form. Id. at 1179-80. Based on this analysis, the Ninth Circuit held that the plaintiffs had satisfied the “good-faith pocketbook action” of Dore-mus. Each of the plaintiffs set forth his or her status as a taxpayer. The taxpayers challenged the appropriation, transfer and spending of taxpayers’ money from the general fund of the state treasury. Further, the taxpayers alleged that they “ha[d] been burdened with the necessity to provide more taxes to support” the program. Id. at 1180. The Ninth Circuit concluded that “[t]he pleadings set forth with specificity amounts of money appropriated and spent for allegedly unlawful purposes.” Id. Thus, under the test announced by the Ninth Circuit, a taxpayer must satisfy three requirements: (1) taxpayer status; (2) the appropriation of monies from the state’s general funds; and (3) the spending of those funds for allegedly unlawful purposes. Under this standard, a taxpayer need not demonstrate" }, { "docid": "11648657", "title": "", "text": "found the case to fit the description of a “good-faith pocketbook action” under Doremus. Id. Similarly, appellants’ allegations satisfy the Doremus pocketbook injury requirement for standing. They have set forth their status as state and municipal taxpayers and specifically have stated the amount of funds appropriated and allegedly spent by the taxing governmental entities as a result of the Good Friday holiday. The government contends that taxpayers as such cannot have standing to challenge section 8-1 because the bare declaration of Good Friday as a state holiday does not, standing alone, involve any expenditure of tax revenues. This argument cannot prevail. Legislative enactments are not the only government activity which the taxpayer may have standing to challenge. See id. (contrasting state taxpayer’s ability to challenge executive conduct with federal taxpayer’s) (quoting Public Citizen, Inc. v. Simon, 539 F.2d 211, 218 n. 30 (D.C.Cir.1976)); see also Bowen v. Kendrick, 487 U.S. 589, 618-20, 108 S.Ct. 2562, 2579-80, 101 L.Ed.2d 520 (1988) (federal taxpayers have standing to challenge executive or administrative grants made pursuant to Congress’ taxing and spending powers); Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (assuming without question that school district taxpayer has standing to challenge school board reimbursement of parents for public transportation fares incurred by their children traveling to parochial schools); District of Columbia Common Cause, 858 F.2d at 8-9 (municipal taxpayers may challenge District of Columbia’s expenditure of public funds to influence the outcome of an initiative); Hawley, 773 F.2d at 741-42 (municipal taxpayers may challenge city lease of airport terminal space to church where the lease agreement could have a detrimental impact on the public fisc). The complaint asserts that section 8-1 proclaims a state holiday in violation of the federal and state constitutions, and that state and municipal tax revenues fund the paid holiday for government employees. The collective bargaining agreements entered into by the government incorporate the challenged statute. In our view, this allegation identifies an expenditure of public funds sufficiently related to appellants’ constitutional claim. 2 Having recognized an injury allegedly suffered by the taxpayer," }, { "docid": "1301720", "title": "", "text": "are paid by appellants and there is no averment that the Bible reading increases any tax they do pay or that as taxpayers they are, will, or possibly can be out of pocket because of it. Id. at 433, 72 S.Ct. at 397. The Court reiterated that a taxpayer “ ‘must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.’ ” Id. at 434, 72 S.Ct. at 397 (quoting Commonwealth of Mass. v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923)). The Court held that “[t]he taxpayer’s action can meet this test, but only when it is a good-faith pocketbook action.” Id. Thus, we must determine whether appellants’ action satisfies the “good-faith pocketbook” requirement. After Doremus, the federal courts have addressed the issue of state taxpayer standing and the type of claim that satisfies the good-faith pocketbook requirement infrequently. In Hoohuli v. Ariyoshi, 741 F.2d 1169 (9th Cir.1984), the Ninth Circuit examined the issue of state taxpayer standing and concluded that the plaintiffs met the Doremus requirements. In Hoohuli, state taxpayers brought an action challenging a system established by the State of Hawaii that disbursed benefits to residents who had descended from aboriginal inhabitants of the islands. The taxpayers claimed that “their tax dollars were being spent on a program which disbursed benefits based on impermissible racial classifications.” Id. at 1172. After reviewing Frothingham and Doremus, the Ninth Circuit concluded that “[s]tate taxpayers could still maintain taxpayer suits if their pleadings were sufficient. They were sufficient if they set forth the relationship between taxpayer, tax dollars, and the allegedly illegal government activity.” Id. at 1178 (citation omitted). To reach this conclusion, the Ninth Circuit reviewed Flast and its progeny and found that because the Supreme Court did not discuss Doremus in the second part of the Flast nexus test, it implicitly distinguished between standing requirements for federal" }, { "docid": "23336530", "title": "", "text": "alleged such an injury, even though she cannot identify municipal expenditures occasioned solely by the only activity that she challenges — the graduation prayer. We are not persuaded. Plaintiff has challenged the use of municipal and state (rather than federal) tax revenues. That being so, Doremus v. Board of Educ. of Borough of Hawthorne, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), controls the requirements for taxpayer standing in this case. See Cammack v. Waihee, 932 F.2d 765, 770 (9th Cir.1991) (“[T]he Doremus requirement of a pocketbook injury applies to municipal taxpayer standing as well as to state taxpayer standing.”); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1180 (9th Cir.1984) (“We are ... left with Doremus in its original form to guide us in questions of state taxpayer standing.”). In Doremus, a taxpayer challenged a state statute that provided for the reading of five verses from the Old Testament at the beginning of each school day. 342 U.S. at 430, 72 S.Ct. 394. The Supreme Court held that the taxpayer lacked standing, because the action was not a “good-faith pocketbook” challenge to the state statute. Id. at 434-35, 72 S.Ct. 394. To establish such a challenge, a plaintiff must demonstrate that the “activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school.” Id. at 433, 72 S.Ct. 394. The taxpayer could not satisfy that requirement, because it was “ ‘neither conceded nor proved that the brief interruption in the day’s schooling caused by compliance with the statute adds cost to the school expenses or varies by more than an incom-putable scintilla the economy of the day’s work.’ ” Id. at 431, 72 S.Ct. 394 (quoting the New Jersey Supreme Court decision under review in Doremus). Instead, it was “apparent” that the taxpayer sought to litigate not a “direct dollars-and-cents injury but ... a religious difference,” which is insufficient to support taxpayer standing. Id. at 434, 72 S.Ct. 394. Under Doremus, then, the taxpayer must demonstrate that the government spends “a measurable" }, { "docid": "22527364", "title": "", "text": "a result of those spending decisions, but only if they seek to \"challeng[e] a specific expenditure of public funds\" on the grounds that public money has been \"used unlawfully\" by a city government. D.C. Common Cause v. District of Columbia , 858 F.2d 1, 8-9 (D.C. Cir. 1988) (quoting Doremus v. Bd. of Educ. of Borough of Hawthorne , 342 U.S. 429, 434, 72 S.Ct. 394, 96 L.Ed. 475 (1952) ). The Supreme Court first explicitly recognized the distinction between federal taxpayer standing and municipal taxpayer standing in 1923, when it observed that a federal taxpayer's \"interest in the moneys of the treasury ... is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain,\" that an individual's status as a federal taxpayer \"afforded [no basis] for an appeal to the preventive powers of a court of equity.\" Frothingham , 262 U.S. at 487, 43 S.Ct. 597. By contrast, \"[t]he interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate.\" Id. at 486, 43 S.Ct. 597. Consequently, the Supreme Court acknowledged the Article III standing of \"resident taxpayers [who] sue to enjoin an illegal use of the moneys of a municipal[ity.]\" Id. Relying on Frothingham , the D.C. Circuit observed almost thirty years ago that \"[t]he distinction between federal and municipal taxpayer standing retains its vitality.\" Common Cause , 858 F.2d at 3. But it is clear that a plaintiff who claims an injury in her capacity as a municipal taxpayer does so under a narrow exception to the general principles of standing law; she must purport to bring \"a good-faith pocketbook action.\" Id. at 4 (quoting Doremus , 342 U.S. at 434, 72 S.Ct. 394 ); see also Nichols v. City of Rehoboth Beach , 836 F.3d 275, 280-81 (3d Cir. 2016) (\"Though a municipal taxpayer may, in some cases, challenge municipal expenditures, her right to do so is not unlimited[, and" }, { "docid": "22527365", "title": "", "text": "in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate.\" Id. at 486, 43 S.Ct. 597. Consequently, the Supreme Court acknowledged the Article III standing of \"resident taxpayers [who] sue to enjoin an illegal use of the moneys of a municipal[ity.]\" Id. Relying on Frothingham , the D.C. Circuit observed almost thirty years ago that \"[t]he distinction between federal and municipal taxpayer standing retains its vitality.\" Common Cause , 858 F.2d at 3. But it is clear that a plaintiff who claims an injury in her capacity as a municipal taxpayer does so under a narrow exception to the general principles of standing law; she must purport to bring \"a good-faith pocketbook action.\" Id. at 4 (quoting Doremus , 342 U.S. at 434, 72 S.Ct. 394 ); see also Nichols v. City of Rehoboth Beach , 836 F.3d 275, 280-81 (3d Cir. 2016) (\"Though a municipal taxpayer may, in some cases, challenge municipal expenditures, her right to do so is not unlimited[, and w]e have applied the 'good-faith pocketbook' requirements, articulated by the Supreme Court in Doremus , to municipal taxpayer standing.\"). Thus, in order to satisfy \"the injury requirement\" of standing, the \"municipal taxpayer [must] establish that the challenged activity involves a measurable appropriation or loss of revenue,\" and that \"tax moneys are [actually being] spent\" on that inappropriate activity. Common Cause , 858 F.2d at 4-5 ; see also Smith v. Jefferson Cty. Bd. of Sch. Comm'rs , 641 F.3d 197, 210 (6th Cir. 2011) (en banc) (\"[M]unicipal taxpayers may fulfill the injury requirement by pleading an alleged misuse of municipal funds.\"). Therefore, as \"carefully defin[ed]\" in this circuit, the \"injury\" to a municipal taxpayer for standing purposes is \"the misuse of public funds[.]\" Common Cause , 858 F.2d at 5. What is more, a plaintiff claiming standing to sue as a municipal taxpayer \"must also establish that the challenged action caused the injury[,] and that the injury would be redressed by a favorable decision.\" Id. (citation omitted); see also Smith , 641 F.3d at 209." }, { "docid": "11648656", "title": "", "text": "standing may apply to state taxpayer standing as well, but not to municipal taxpayer standing). Thus, we conclude that municipal taxpayer standing simply requires the “injury” of an allegedly improper expenditure of municipal funds, and in this way mirrors our threshold for state taxpayer standing. Our next inquiry is whether appellants have, in fact, established the requisite “pocketbook” injury^ In Hoohuli, state taxpayers challenged an Hawaiian program which was designed to disburse benefits to state residents who were descendants of the aboriginal inhabitants of the islands. The program, established pursuant to an amendment to the state constitution, involved the expenditure of tax dollars through an administrative division (the Office of Hawaiian Affairs) created to implement the amendment. Hoohuli, 741 F.2d at 1172. The taxpayers protested the “ ‘appropriating, transferring, and spending.... of taxpayers’ money from the General Fund of the State Treasury_Id. at 1180. The taxpayers alleged that the program saddled them with an additional tax burden and that the revenues would be unlawfully spent to support the “class” of Native Hawaiians. Id. The court found the case to fit the description of a “good-faith pocketbook action” under Doremus. Id. Similarly, appellants’ allegations satisfy the Doremus pocketbook injury requirement for standing. They have set forth their status as state and municipal taxpayers and specifically have stated the amount of funds appropriated and allegedly spent by the taxing governmental entities as a result of the Good Friday holiday. The government contends that taxpayers as such cannot have standing to challenge section 8-1 because the bare declaration of Good Friday as a state holiday does not, standing alone, involve any expenditure of tax revenues. This argument cannot prevail. Legislative enactments are not the only government activity which the taxpayer may have standing to challenge. See id. (contrasting state taxpayer’s ability to challenge executive conduct with federal taxpayer’s) (quoting Public Citizen, Inc. v. Simon, 539 F.2d 211, 218 n. 30 (D.C.Cir.1976)); see also Bowen v. Kendrick, 487 U.S. 589, 618-20, 108 S.Ct. 2562, 2579-80, 101 L.Ed.2d 520 (1988) (federal taxpayers have standing to challenge executive or administrative grants made pursuant to Congress’ taxing" }, { "docid": "23336529", "title": "", "text": "Circuit judges voted to rehear both panel decisions en banc, and the decisions were withdrawn. See Doe v. Madison Sch. Dist. No. 321, 165 F.3d 1265 (9th Cir.1999). STANDING Ordinarily, to prove an injury in fact under Article III of the Constitution, the plaintiff need only allege an injury that is “fairly traceable” to the wrongful conduct; the injury need not be financial. See Kane v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636, 642 n. 2 (2d Cir.1988). However, “taxpayer standing,” by its nature, requires an injury resulting from a government’s expenditure of tax revenues. See Clay v. Fort Wayne Community Schools, 76 F.3d 873, 879 (7th Cir.1996) (“Municipal taxpayer status does not confer standing absent some allegation by the plaintiffs of an illegal use of tax revenues.”); Fuller v. Volk, 351 F.2d 323, 327 (3d Cir.1965) (“[T]he taxpayer must be shown to be suing to prevent a misuse of public funds for this is the only interest which a federal court can protect in a taxpayer’s suit.”). Doe argues that she has alleged such an injury, even though she cannot identify municipal expenditures occasioned solely by the only activity that she challenges — the graduation prayer. We are not persuaded. Plaintiff has challenged the use of municipal and state (rather than federal) tax revenues. That being so, Doremus v. Board of Educ. of Borough of Hawthorne, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), controls the requirements for taxpayer standing in this case. See Cammack v. Waihee, 932 F.2d 765, 770 (9th Cir.1991) (“[T]he Doremus requirement of a pocketbook injury applies to municipal taxpayer standing as well as to state taxpayer standing.”); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1180 (9th Cir.1984) (“We are ... left with Doremus in its original form to guide us in questions of state taxpayer standing.”). In Doremus, a taxpayer challenged a state statute that provided for the reading of five verses from the Old Testament at the beginning of each school day. 342 U.S. at 430, 72 S.Ct. 394. The Supreme Court held that the taxpayer lacked standing, because the" }, { "docid": "11648654", "title": "", "text": "598). The Court in Doremus then harmonized its announced rule with a school district taxpayer case. See id. (discussing Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (assuming standing for school district taxpayer challenge of school board expenditures for transportation of parochial school students)). Subsequent cases have made clear that municipal taxpayer standing is only available when there is an expenditure of municipal funds challenged; courts in other circuits often have applied Doremus-Yike language to express this rule. See, e.g., District of Columbia Common Cause, 858 F.2d at 4 (explicitly applying the Doremus rule to municipal taxpayers); Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1469-70 (7th Cir.1988) (municipal taxpayers have standing to challenge the improper use of tax revenues but no standing where there has been no expenditure of city funds); Hawley v. City of Cleveland, 773 F.2d 736, 741-42 (6th Cir.1985) (municipal taxpayers may enjoin improper municipal expenditures), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Donnelly v. Lynch, 691 F.2d 1029, 1031 (1st Cir.1982) (“municipal taxpayers ... have standing to sue to challenge allegedly unconstitutional use of their tax dollars”), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). In fact, even those who have taken a dimmer view of the breadth of state taxpayer standing than this court have recognized that municipal taxpayer standing requires no more injury than an allegedly improper municipal expenditure. See, e.g., ASARCO, Inc. v. Kadish, 490 U.S. 605, 612, 109 S.Ct. 2037, 2042, 104 L.Ed.2d 696 (1989) (Kennedy, J.) (distinguishing the standing requirements for municipal taxpayers from those for state taxpayers, who must have a “direct injury” like that required of federal taxpayers) ; Taub v. Commonwealth of Kentucky, 842 F.2d 912, 917-19 (6th Cir.) (rejecting Hoohuli and restricting state taxpayer standing in non-establishment clause cases to that available to federal taxpayers, while leaving the municipal taxpayer standing rules unchanged), cert. denied, 488 U.S. 870, 109 S.Ct. 179, 102 L.Ed.2d 148 (1988); Donnelly, 691 F.2d at 1031 (the restrictive view of federal taxpayer" }, { "docid": "23336532", "title": "", "text": "appropriation or disbursement of school-district funds occasioned solely by the activities complained of.” Id. at 434, 72 S.Ct. 394; see also Western Min. Council v. Watt, 643 F.2d 618, 632 (9th Cir.1981) (stating the same rule and following Doremus)-, Taxpayers’ Suits, A Survey and Summary, 69 Yale L.J. 895, 922 (1960) (Doremus “stands for the proposition that a state or municipal taxpayer does not have a direct enough interest for his suit to constitute an article III case or controversy unless the activity challenged involves an expenditure of public funds which would not otherwise be made.”). Applying the principles from Doremus, we have allowed taxpayers to challenge a state’s declaration of Good Friday as a holiday, because “state and municipal tax revenues fund the paid holiday for government employees.” Cammack, 932 F.2d at 771. Similarly, we have allowed taxpayers to challenge a state’s disbursement of funds to a particular class of native inhabitants. See Hoohuli, 741 F.2d at 1180. In each of those cases, the plaintiffs alleged specific amounts of money that the government had spent solely on the unlawful activity. By contrast, when a plaintiff has failed to allege that the government spent tax dollars solely on the challenged conduct, we have denied standing. In Reimers v. Oregon, 863 F.2d 630 (9th Cir.1988), we held that the plaintiff “cannot claim taxpayer standing on this appeal because he does not challenge the disbursement of state funds on the chaplain program at OSP. Instead, he complains about the requirement that a specific religion, Roman Catholicism, be represented on the chaplain staff.” Id. at 632 n. 4 (citing Doremus, 342 U.S. at 433-35, 72 S.Ct. 394). Similarly, in Smith v. Denny, 417 F.2d 614, 614-15 (9th Cir.1969) (per curiam), dismissing appeal from 280 F.Supp. 651, 652 (E.D.Cal.1968), we relied on Doremus to hold that the taxpayers lacked standing to challenge a school’s policy requiring daily recital of the pledge of allegiance. Doe identifies no tax dollars that defendants spent solely on the graduation prayer, which is the only activity that she challenges. In fact, Doe acknowledges affirmatively that “[t]he prayers ... cost" }, { "docid": "23336531", "title": "", "text": "action was not a “good-faith pocketbook” challenge to the state statute. Id. at 434-35, 72 S.Ct. 394. To establish such a challenge, a plaintiff must demonstrate that the “activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school.” Id. at 433, 72 S.Ct. 394. The taxpayer could not satisfy that requirement, because it was “ ‘neither conceded nor proved that the brief interruption in the day’s schooling caused by compliance with the statute adds cost to the school expenses or varies by more than an incom-putable scintilla the economy of the day’s work.’ ” Id. at 431, 72 S.Ct. 394 (quoting the New Jersey Supreme Court decision under review in Doremus). Instead, it was “apparent” that the taxpayer sought to litigate not a “direct dollars-and-cents injury but ... a religious difference,” which is insufficient to support taxpayer standing. Id. at 434, 72 S.Ct. 394. Under Doremus, then, the taxpayer must demonstrate that the government spends “a measurable appropriation or disbursement of school-district funds occasioned solely by the activities complained of.” Id. at 434, 72 S.Ct. 394; see also Western Min. Council v. Watt, 643 F.2d 618, 632 (9th Cir.1981) (stating the same rule and following Doremus)-, Taxpayers’ Suits, A Survey and Summary, 69 Yale L.J. 895, 922 (1960) (Doremus “stands for the proposition that a state or municipal taxpayer does not have a direct enough interest for his suit to constitute an article III case or controversy unless the activity challenged involves an expenditure of public funds which would not otherwise be made.”). Applying the principles from Doremus, we have allowed taxpayers to challenge a state’s declaration of Good Friday as a holiday, because “state and municipal tax revenues fund the paid holiday for government employees.” Cammack, 932 F.2d at 771. Similarly, we have allowed taxpayers to challenge a state’s disbursement of funds to a particular class of native inhabitants. See Hoohuli, 741 F.2d at 1180. In each of those cases, the plaintiffs alleged specific amounts of money that the government had" }, { "docid": "7178840", "title": "", "text": "facts, and it has refused to extend Flast to exercises of executive power (see Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 228, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 706 (1974)), or of congressional power under the Property Clause (see Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 480, 102 S.Ct. 752, 762-63, 70 L.Ed.2d 700 (1982)). See generally Kurtz v. Baker, 829 F.2d 1133, 1139-40 (D.C.Cir.1987) (surveying law of federal taxpayer standing), cert. denied, — U.S. -, 108 S.Ct. 2831, 100 L.Ed.2d 931 (1988). Schlesinger, Valley Forge, and similar cases must be understood as limiting the Flast exception to the Court’s general rule against federal taxpayer standing. They do not limit municipal taxpayer standing which, as we know from Frothingham, rests on an entirely different foundation. See, e.g., Hawley v. City of Cleveland, 773 F.2d 736, 741-42 (6th Cir.1985) (Valley Forge does not overrule recognition of municipal taxpayer standing in Frothingham; “Supreme Court continues to allow suits by nonfederal taxpayers to enjoin unconstitutional acts affecting public finances”), cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Donnelly v. Lynch, 691 F.2d 1029, 1031 (1st Cir.1982) (no indication that Valley Forge intended to overrule cases establishing that municipal taxpayers have standing), rev’d on other grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). 2. Elements of Municipal Taxpayer Standing a. Pocketbook Injury A taxpayer’s challenge to a state expenditure establishes a case or controversy “when it is a good-faith pocketbook action.” Doremus v. Board of Education, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952). Doremus involved a challenge by state taxpayers to Bible reading in public schools. The Court recognized the distinction between municipal and federal taxpayer standing, but refused to accord standing to a state taxpayer absent evidence of “some direct injury,” id. (quoting Frothingham, 262 U.S. at 488, 43 S.Ct. at 601), i.e., a “measurable appropriation” of tax funds. Id. (discussing Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, (1947)). As" }, { "docid": "17666673", "title": "", "text": "L.Ed.2d 947 (1968) (delineating limited exception to the bar against federal taxpayer standing). State taxpayers, like federal taxpayers, do not have standing to challenge the actions of state government simply because they pay taxes to the state. In Doremus v. Board of Educ. of Hawthorne, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952), the Supreme Court likened state taxpayers to federal taxpayers for the purposes of standing, and held that a state taxpayer’s action only amounts to a ease or controversy when it is a “good-faith pocketbook action,” in which the taxpayer alleges injury to a “direct and particular financial interest.” Id. at 434-35, 72 S.Ct. at 398; see also ASARCO Inc. v. Radish, 490 U.S. 605, 613, 109 S.Ct. 2037, 2043, 104 L.Ed.2d 696 (1989) (Kennedy, J., joined by three justices) (“[W]e have likened state taxpayers to federal taxpayers, and thus we have refused to confer standing upon a state taxpayer absent a showing of ‘direct inju-ry_’”). We note, however, that the lower courts have employed differing interpretations of Doremus in regard to the question of taxpayer standing. Compare Colorado Taxpayers Union, Inc. v. Romer, 963 F.2d 1394, 1402-03 (10th Cir.1992) (requirements for federal and state taxpayer standing the same), cert. denied, — U.S. -, 113 S.Ct. 1360, 122 L.Ed.2d 739 (1993) and Taub v. Kentucky, 842 F.2d 912, 918 (6th Cir.) (same), cert. denied, 488 U.S. 870, 109 S.Ct. 179, 102 L.Ed.2d 148 (1988) with Hoohuli v. Ariyoshi, 741 F.2d 1169, 1180 (9th Cir.1984) (state taxpayer standing found where each plaintiff alleged “status as a taxpayer” and identified “amounts of money appropriated” for challenged actions). It seems to us that the “direct and particular” interest referred to in Doremus requires more than the mere payment of taxes alleged here. However, while the foregoing rules present substantial obstacles to taxpayers who challenge federal or state actions, a taxpayer who challenges municipal actions stands on a different footing for reasons explained by the Frothingham Court: The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate, and the remedy by injunction" }, { "docid": "11648652", "title": "", "text": "and municipal. The seminal state taxpayer standing ease is Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). In that case, the Supreme Court explained that a state taxpayer has standing to challenge a state statute when the taxpayer is able to show that he “ ‘has sustained or is immediately in danger of sustaining some direct injury as the result of [the challenged statute’s] enforcement.’ ” Id. at 434, 72 S.Ct. at 397 (quoting Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923) (also known as Frothingham v. Mellon)). The direct injury required by Doremus is established when the taxpayer brings a “good-faith pocketbook action”; that is, when the challenged statute involves the expenditure of state tax revenues. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1178 (9th Cir.1984) (pleadings must “set forth the relationship between taxpayer, tax dollars, and the allegedly illegal government activity”) (citing Doremus); see also Reimers v. State of Oregon, 863 F.2d 630, 632 n. 4 (9th Cir.1988) (no state taxpayer standing where taxpayer does not challenge the disbursement of state funds) (citing Doremus). However, Hoohuli, the leading case on this issue in the circuit, does not require that the taxpayer prove that her tax burden will be lightened by elimination of the questioned expenditure. See Minnesota Fed’n of Teachers v. Randall, 891 F.2d 1354, 1357 (8th Cir.1989) (following Hoohuli); cf. District of Columbia Common Cause v. District of Columbia, 858 F.2d 1, 5 (D.C.Cir.1988) (injury redressed by elimination of expenditure, rather than by decrease in taxation). This court has not previously ruled on the different injury requirements, if any, for municipal taxpayer standing, It seems to us, however, that the Doremus requirement of a pocketbook injury applies to municipal taxpayer standing as well as to state taxpayer standing. Doremus itself, while treating the specific question of state taxpayer standing, quoted a municipal taxpayer standing case for the proposition that a direct injury was necessary. See Doremus, 342 U.S. at 434, 72 S.Ct. at 397 (quoting Massachusetts (Frothingham), 262 U.S. at 448, 43 S.Ct. at" } ]

[ { "docid": "8157267", "title": "", "text": "its obligation); Sheppard v. Tribble Heating & Air Conditioning, Inc., 163 Ga.App. 732, 294 S.E.2d 572, 573 (1982) (an undercapitalized corporation was the alter ego of its sole shareholder, who made all business decisions, held few corporate meetings, used the same office for his other businesses, used corporate employees on personal projects, and diverted corporate funds for his personal and other corporate expenses). . In lending money to associates and pledging its certificates of deposit for the benefit of American, we realize that Fidelity (and Skiba) may well have violated several provisions of the Act and regulations governing SBICs. See, e.g., United States v. Vanguard Inv. Co., 694 F.Supp. 1219, 1226 (M.D.N.C.1988) (SBIC license revocation justified when SBIC \"ha[d] long history of difficulty in meeting its obligations ... [and its] operation [had] declined such that it more closely resemble[d] a real estate holding company than a [SBIC]” and had violated several of the regulations), aff’d, 907 F.2d 439 (4th Cir.1990); Electronic Sys. Inv. Corp. v. Small Business Admin., 405 F.2d 188, 189 (4th Cir.1968) (SBIC that financed a small company with a common director violated regulations), cert. denied, 394 U.S. 1014, 89 S.Ct. 1633, 23 L.Ed.2d 41 (1969). As we note above, however, a loan or other transaction that violates either the Act or the regulations is still valid and enforceable between the parties. Talco Capital Corp., 225 F.Supp. at 1013-14. Moreover, no private right of action exists for a violation of the Act or the regulations. Goodall v. Columbia Ventures, Inc., 374 F.Supp. 1324, 1330-31 (S.D.N.Y.1974). Fidelity’s violations of SBA rules are relevant to its status as an SBA licensee, not to Skiba’s abuse of the corporate entity. . The court therefore may not use its equitable powers to force Fidelity to release its mortgage. Cf. Brega v. CSRA Realty Co., 223 Ga. 724, 157 S.E.2d 738, 739-40 (1967) (court refused to order a corporation to perform a contract to sell land signed by its vice-president in his individual capacity); Jolles v. Holiday Builders, Inc., 222 Ga. 358, 149 S.E.2d 814, 815 (1966) (neither president nor corporation liable for" } ]

[ { "docid": "15722697", "title": "", "text": "of interest paid on the loan”), how they may recover (by commencing a civil action), where they must act (in a court of appropriate jurisdiction), and when they may recover (“not later than two years after the most recent payment of interest”). 15 U.S.C. § 687(i)(4)(B). Paragraph (A) contains none of these details and instead contains self-executing bar language (“shall be deemed a forfeiture”). When compared with the language of paragraph (A), the level of specificity detailed in paragraph (B) about how a borrower may recover supports PMF’s position that paragraph (B) provides the sole vehicle for a borrower’s recovery of interest paid. Although no court has yet decided whether § 687(i)(4)(A) of the SBIA allows for return of retained collateral, cases interpreting usury statutes similar to the SBIA support PMF’s contention that the forfeiture provision of § 687(i)(4)(A) provides only a defense to borrowers, as opposed to a vehicle for recovery. Usury statutes providing remedies both for interest charged — forfeiture of all interest— and for interest paid — recovery of twice the interest paid — have been interpreted as providing separate defensive and affirmative remedies. For example, the Supreme Court explained in Talbot v. First Nat’l Bank of Sioux City that a similar usury statute provided for “two cases.” 185 U.S. 172, 180, 22 S.Ct. 612, 46 L.Ed. 857 (1902). These two scenarios were “(1) where illegal interest has been taken, received, or charged;” and “(2) where illegal interest has been paid.” Id. The Court explained that in the first case, “the entire interest ... shall be deemed forfeited,” and that in the second case, “the person who has paid ‘the greater rate of interest may recover twice the amount of interest thus paid.’ ” Id. A more illustrative explanation of the difference between the two remedies in a similar statute is found in Dietz v. Phipps (In re Sunde), 149 B.R. 552 (Bankr.D.Minn.1992). In Dietz, the court highlighted the different types of relief afforded by the “two different remedies.” Id. at 559, n. 5. [T]he first sentence allows prospective relief — the lender may be barred from" }, { "docid": "15722693", "title": "", "text": "to support the bankruptcy court’s finding of detrimental reliance. In re Transworld Telecomm., Inc. v. Pacific Mezzanine Fund, L.P., 260 B.R. 204 (D.Utah 2001). Nonetheless, the district court ordered the return of the promissory notes, citing the forfeiture provision of the SBIA, 15 U.S.C. § 687(i)(4)(A) as authority, in addition to ordering PMF to pay TTI twice the interest it had paid, pursuant to 15 U.S.C. § 687(i)(4)(B). The district court set the prejudgment interest rate on the proceeds of the WHI Note at fourteen percent. PMF now appeals the district court’s order of return of the promissory notes (or their proceeds), and in the alternative, argues that the district court abused its discretion in setting the prejudgment interest rate at fourteen percent. II. DISCUSSION A. Standard of Review This court reviews de novo the district court’s interpretations of federal law. Resolution Trust Corp. v. Federal Sav. and Loan Ins. Corp., 25 F.3d 1493, 1506 (10th Cir.1994). We review the findings of fact made by the bankruptcy court and adopted by the district court for clear error. Phillips v. White (In re White), 25 F.3d 931, 933 (10th Cir.1994). B. Analysis 1. SBIA The SBIA provides consequences in the event that a lender charges a small business borrower an interest rate that exceeds the maximum limit authorized by statute. No case has interpreted the remedial provisions of the SBIA at issue in this case, which state: (A) If the maximum rate of interest authorized under paragraph (2) on any loan made by a small business investment company exceeds the rate which would be authorized by applicable State law if such State law were not preempted for purposes of this subsection, the charging of interest at any rate in excess of the rate authorized by paragraph (2) shall be deemed a forfeiture of the greater of (i) all interest which the loan carries with it, or (ii) all interest which has been agreed to be paid thereon. (B) In the case of any loan with respect to which there is a forfeiture of interest under subparagraph (A), the person who paid" }, { "docid": "1226316", "title": "", "text": "businesses. However, BBCC cannot be considered a real competitor of defendant’s as it does not make SBIA loans, which have the advantage, among other factors, of making credit more easily available because they are government insured, and it makes few loans (six percent of its total) in the states in which defendant operates. The plaintiff has not proven that the possibility of future competition will be substantial, particularly in view of the lack of evidence that plaintiffs intend to expand BBCC either into the SBIA market or geographically. Accordingly, we conclude that plaintiff has failed to establish that there is a real possibility that it will bridge the gap between its services and those offered by defendant. (5) Actual Confusion The sole evidence of actual confusion between plaintiffs and defendant, such as it is, is to be found in the market research survey commissioned by plaintiffs, discussed above. To the key question asked by the survey, “Do you think that there may or may not be a business connection between Beneficial Capital Corp. and the Beneficial Finance System Companies?” thirty-one percent of the respondents stated that such a connection was either definite or probable. This evidence is of little probative value, however. First: the question framed has a “leading” quality, not well suited to eliciting an uninfluenced reaction from the persons questioned. Second: while thirty-one percent of those questioned may have indicated confusion, sixty-nine percent apparently did not. Finally, the survey, in which random consumers and small businesses were selected from the telephone book, cannot be credited as a survey of “consumer reaction to the products under actual market conditions.” Information Clearing House, supra, 492 F.Supp. at 160, because when faced with the prospect of borrowing money from either plaintiffs or defendant, a consumer or business would necessarily know more about the company than the minimal information provided to the survey respondents: the names of the companies. The survey establishes no more than that the names are similar, a factor as to which there can be little genuine dispute in any event, and that portions of the general public will" }, { "docid": "15722696", "title": "", "text": "usurious loan. In contrast with § 687(i)(4)(B), which provides borrowers with an affirmative recovery of interest paid, PMF argues that § 687(i)(4)(A) provides a remedy when usurious interest has been charged, but not collected. Thus, it argues that § 687(i)(4)(A) has no relevance to this case. TTI, on the other hand, contends that because PMF retained the promissory notes “largely on account of forfeited interest,” PMF ran afoul of § 687(i)(4)(A), and thus, the district court correctly ordered the notes returned to TTI. The issue, in short, is whether § 687(i)(4)(A) provides an aggrieved debtor with a basis for affirmative recovery. When interpreting a statute, the plain meaning controls. See Robinson v. Shell Oil Co., 519 U.S. 337, 340-41, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). By its terms, the statute establishes an affirmative “recover[y]” of interest paid in § 687(i)(4)(B) and does not contain language of “recovery” in § 687(i)(4)(A). For example, paragraph (B) states who may recover (the “person who paid the interest”), what they may recover (“amount equal to twice the amount of interest paid on the loan”), how they may recover (by commencing a civil action), where they must act (in a court of appropriate jurisdiction), and when they may recover (“not later than two years after the most recent payment of interest”). 15 U.S.C. § 687(i)(4)(B). Paragraph (A) contains none of these details and instead contains self-executing bar language (“shall be deemed a forfeiture”). When compared with the language of paragraph (A), the level of specificity detailed in paragraph (B) about how a borrower may recover supports PMF’s position that paragraph (B) provides the sole vehicle for a borrower’s recovery of interest paid. Although no court has yet decided whether § 687(i)(4)(A) of the SBIA allows for return of retained collateral, cases interpreting usury statutes similar to the SBIA support PMF’s contention that the forfeiture provision of § 687(i)(4)(A) provides only a defense to borrowers, as opposed to a vehicle for recovery. Usury statutes providing remedies both for interest charged — forfeiture of all interest— and for interest paid — recovery of twice the interest" }, { "docid": "15722688", "title": "", "text": "by charging usurious interest and ordered payment of double the interest paid and return of the two promissory notes, or the proceeds therefrom. On appeal to our court, PMF concedes that the interest charged on the loan was usurious and does not contest the district court’s order to pay TTI double the interest that it paid on the loan. PMF contends, however, that the district court’s order to return the promissory notes (or the proceeds thereof) exceeds the statutory remedies provided for usurious loans under the SBIA. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we hold that the usury remedy detailed in the SBIA at 15 U.S.C. § 687(i)(4) does not provide for the return of collateral retained upon proper foreclosure of the underlying usurious loan. Accordingly, we reverse the district court’s order requiring PMF to return the promissory notes. I. BACKGROUND In June 1996, PMF, a small business investment company licensed under the SBIA, loaned $2,500,000 to TTI. The loan was subject to the provisions of the SBIA, and the parties agreed that it would be governed by California law. Under the SBIA, PMF could not charge more than fourteen percent annual interest on the loan. TTI agreed to make quarterly interest payments on the loan and pledged the following collateral: (1) a “put option” owned by TTI requiring Videotron to purchase TTI’s 200 shares of Videotron (Bay Area) Inc. for a price not less than $2,600,000 (the ‘VBAI Put”); (2) a promissory note from Wireless Holdings, Inc. to TTI in the principal amount of $2,375,415 (the “WHI Note”); and (3) a promissory note from Wireless Cable and Communications, Inc. to TTI in the principal amount of $1,000,000 (the “WCCI Note”). Under the California Commercial Code, a lender has two choices when a borrower defaults. Pursuant to § 9504, the lender may exercise its right to dispose of the collateral, applying the proceeds to the remaining balance on the debt. (Cal. Comm.Code § 9504.) Any surplus from the sale is given to the borrower, but the borrower remains hable for any deficiency if the sale’s proceeds are" }, { "docid": "15722705", "title": "", "text": "funds from the sale (i.e. if proceeds from the sale exceeded the remaining obligation on the loan). If TTI had believed that the promissory notes had significant value at the time they received PMF’s Retention Letter, they certainly could have requested that PMF dispose of the notes, with TTI receiving the benefits of excess proceeds from that sale. We are troubled by the seemingly inequitable result in this case stemming from PMF’s misstatement of the remaining balance due on the loan. TTI, however, was not without legal recourse to remedy that erroneous balance — it could have pursued a cause of action under the California Commercial Code. TTI did not raise a such a claim below, however, relying solely on the SBIA provisions and common law theories of estoppel, conversion, and reliance in its complaint and trial brief before the bankruptcy court. In its reply to PMF’s objections to the bankruptcy court’s findings, TTI did not state as a separate issue that the notice violated the California Commercial Code, nor did it present the issue at oral argument before the district court. TTI’s new argument based on the California Commercial Code is, not surprisingly, unsupported by the record because it was not presented to either of the courts below. Because we find the district court improperly ordered PMF to return the promissory notes, we need not address PMF’s argument that the district court abused its discretion in setting the prejudgment interest rate at fourteen percent. III. CONCLUSION We REVERSE the district court’s order instructing PMF to return the promissory notes or proceeds therefrom to TTI and REMAND this case to the district court for proceedings consistent with this opinion. . TTI is a Chapter 11 debtor, and its rights against PMF were assigned to the TTI Trust in its Chapter 11 reorganization. Joel Marker is trustee of the TTI Trust. . This case involves several figures that ultimately are not relevant to our holding. In addition to principal and interest, TTI also owed PMF a $300,000 warrant purchase agreement, which was to be increased to $375,000 in the event of" }, { "docid": "1226306", "title": "", "text": "substantial amount of advertising: their radio ads, “Toot, toot, at Beneficial, you’re good for more,” are familiar to a large public. Plaintiff Beneficial Management Corporation of America, also a wholly-owned subsidiary of Beneficial Corporation, owns the registered service mark “Beneficial Finance System” which is used as a service identification in the offices of the subsidiaries of Beneficial Corporation. Capital is a small business investment company licensed under the Small Business Investment Act of 1958,15 U.S.C. §§ 681 et seq. (“SBIA”) which lends only to small business concerns, as provided by the SBIA. Since 1976, it has made approximately forty loans. The loans average approximately $54,000., with the smallest to date being for $10,000. It engages in no advertising or marketing; its customers are obtained through referrals. Approximately ninety percent of its loans are to corporations. Capital Management is a broker dealer registered pursuant to § 15(b) of the Securities Exchange Act of 1934. Its sole business to date has been advising clients on participation in tax shelters and oil and gas partnerships. I. Secondary Meaning In order to invoke the protection of § 43(a) of the Lanham Act, a user of an unregistered name or mark must demonstrate that its name has acquired “secondary meaning;” Vibrant Sales, Inc. v. New Body Boutique, Inc., 652 F.2d 299 (2d Cir. 1981), that is, that “the purchasing public has come to associate the [name] .. . with goods from a single source.” RJR Foods, Inc. v. White Rock Corp. 603 F.2d 1058, 1059 (2d Cir. 1979). Plaintiffs produced considerable evidence of secondary meaning, including the fact that they have engaged in extensive advertising, focusing on the name Beneficial, and that the subsidiaries using the name Beneficial have entered into consumer loan arrangements amounting to billions of dollars. In addition, plaintiffs introduced a research study, Plaintiffs’ Exhibit 12, entitled “A Survey on Company Names,” conducted by an experienced market research company, Storm Marketing Research, Inc. The study asked individuals and small businesses randomly selected from the New York, New Jersey and Florida telephone books and con tacted by telephone whether they had ever heard" }, { "docid": "1226315", "title": "", "text": "either from purchasing the products of one of them under the mistaken assumption that they are buying a product produced or sponsored by the other. See Scarves by Vera, supra, at 1172. In view of the pronounced differences between the loans made by plaintiffs and those made by defendant, and the convincing evidence of the sophistication of defendant’s customers, we conclude that the possibility of' the confusion against which the trademark laws protect must be characterized as remote. (4) The Likelihood That the Prior Owner Will Bridge the Gap “The concept of ‘bridging the gap’ considers the senior user’s interest in preserving reasonable avenues of future expansion into related fields. However, there is a countervailing public interest in not providing an overly broad ambit of protection that would enable the senior user to preclude others from entering unrelated markets into which it has no intention of entering.” Information Clearing House, supra, 492 F.Supp. at 159. Plaintiffs introduced evidence that they have recently established a subsidiary, Beneficial Business Credit Corp. (“BBCC”) which loans money to small businesses. However, BBCC cannot be considered a real competitor of defendant’s as it does not make SBIA loans, which have the advantage, among other factors, of making credit more easily available because they are government insured, and it makes few loans (six percent of its total) in the states in which defendant operates. The plaintiff has not proven that the possibility of future competition will be substantial, particularly in view of the lack of evidence that plaintiffs intend to expand BBCC either into the SBIA market or geographically. Accordingly, we conclude that plaintiff has failed to establish that there is a real possibility that it will bridge the gap between its services and those offered by defendant. (5) Actual Confusion The sole evidence of actual confusion between plaintiffs and defendant, such as it is, is to be found in the market research survey commissioned by plaintiffs, discussed above. To the key question asked by the survey, “Do you think that there may or may not be a business connection between Beneficial Capital Corp. and the" }, { "docid": "15722692", "title": "", "text": "the WHI Note. TTI argues that PMF’s enormous gain on a usurious loan violates the SBIA and that return of the promissory notes (meaning the proceeds from the WHI Note and the WCCI Note itself) is a remedy authorized by the SBIA. TTI filed a Chapter 11 petition at the end of 1997. It then filed the instant action claiming that the interest rate charged by PMF violated the SBIA. In June 2000, the bankruptcy court found that PMF had charged interest in excess of fourteen percent and ordered PMF to pay TTI double the interest that TTI had paid on the loan. It also found that the balance actually due at the time of the Retention Letter was approximately $98,000, not $413,000, and that TTI had relied detrimentally on the erroneous balance in failing to object to PMF’s retention of the collateral. Thus, it also ordered PMF to return the two promissory notes. In January 2001, the district court adopted the findings and recommendations of the bankruptcy court, except that it found insufficient evidence to support the bankruptcy court’s finding of detrimental reliance. In re Transworld Telecomm., Inc. v. Pacific Mezzanine Fund, L.P., 260 B.R. 204 (D.Utah 2001). Nonetheless, the district court ordered the return of the promissory notes, citing the forfeiture provision of the SBIA, 15 U.S.C. § 687(i)(4)(A) as authority, in addition to ordering PMF to pay TTI twice the interest it had paid, pursuant to 15 U.S.C. § 687(i)(4)(B). The district court set the prejudgment interest rate on the proceeds of the WHI Note at fourteen percent. PMF now appeals the district court’s order of return of the promissory notes (or their proceeds), and in the alternative, argues that the district court abused its discretion in setting the prejudgment interest rate at fourteen percent. II. DISCUSSION A. Standard of Review This court reviews de novo the district court’s interpretations of federal law. Resolution Trust Corp. v. Federal Sav. and Loan Ins. Corp., 25 F.3d 1493, 1506 (10th Cir.1994). We review the findings of fact made by the bankruptcy court and adopted by the district court for" }, { "docid": "15722708", "title": "", "text": "preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same; provided such action is commenced within two years from the time the usurious transaction occurred. 185 U.S. at 180, 22 S.Ct. 612. . Even though this statute requires forfeiture in more situations than those prohibited by the SBIA, which only addresses the \"charging” of excessive interest, the \"taking, receiving, reserving, or charging” language appears to be standard usury language that does not mean \"paid.\" . The statute at issue in Dietz stated: If a greater rate of interest than permitted by [statute] is charged then the interest due on that note, bill or other evidence of debt is forfeited. If the greater rate of interest has been paid, the person who paid it may recover in a civil action an amount equal to twice the amount of interest paid. 149 B.R. at 559. . Thus, we are not presented with the more difficult question of what remedy the SBIA provides if PMF retained the collateral solely on the basis of an outstanding balance that consisted only of forfeitable interest. . The district court questioned TTI's attorney at oral argument about why this option was not pursued. “Why didn’t your client do something? Why didn’t it — if it knew that the collateral was worth four to $5 million, and even assuming a $400,000 debt, why didn't they take some action to have another buyer purchase the collateral or one of the other remedies that I believe — .” (App. at 160.) TTI's attorney apparently misunderstood the options available to his client under the California Commercial Code. He replied that TTI may have been" }, { "docid": "1226305", "title": "", "text": "LASKER, District Judge. This action was brought by Beneficial Corporation, Beneficial Management Corpo- ration of America and Beneficial Finance Co. of New York, Inc. (“Beneficial Finance”) against Beneficial Capital Corp. (“Capital”) and Beneficial Capital Management Corp. (“Capital Management”) complaining that defendants’ use of the name “Beneficial” is likely to cause confusion as to the source of defendants’ services and to induce the public to deal with defendants in the mistaken belief that the services offered by defendants are in fact those of plaintiffs, in contravention of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Plaintiffs also claim that defendants’ use of the name “Beneficial” creates a likelihood of injury to plaintiffs’ business reputation or a dilution of the distinctive quality of plaintiffs’ name, under N.Y. General Business Law § 368-d. A bench trial was held. Beneficial Finance and Capital are both in the business of lending money. Beneficial Finance, a wholly-owned subsidiary of plaintiff Beneficial Corporation, makes consumer and homeowner loans to individuals which average approximately $1,500. per loan. Plaintiffs engage in a substantial amount of advertising: their radio ads, “Toot, toot, at Beneficial, you’re good for more,” are familiar to a large public. Plaintiff Beneficial Management Corporation of America, also a wholly-owned subsidiary of Beneficial Corporation, owns the registered service mark “Beneficial Finance System” which is used as a service identification in the offices of the subsidiaries of Beneficial Corporation. Capital is a small business investment company licensed under the Small Business Investment Act of 1958,15 U.S.C. §§ 681 et seq. (“SBIA”) which lends only to small business concerns, as provided by the SBIA. Since 1976, it has made approximately forty loans. The loans average approximately $54,000., with the smallest to date being for $10,000. It engages in no advertising or marketing; its customers are obtained through referrals. Approximately ninety percent of its loans are to corporations. Capital Management is a broker dealer registered pursuant to § 15(b) of the Securities Exchange Act of 1934. Its sole business to date has been advising clients on participation in tax shelters and oil and gas partnerships. I. Secondary Meaning" }, { "docid": "15722704", "title": "", "text": "that secures it, remain undisturbed by the statute. See United States v. Fidelity Capital Corp., 920 F.2d 827, 831 (11th Cir.1991) (“A loan or other transaction that violates either the [SBIA] or the regulations, however, is still valid and enforceable between the parties.”). Therefore, despite its violation of the SBIA by charging excessive interest, PMF retained its right to proceed with foreclosure procedures on the outstanding, non-interest debt on the loan, pursuant to the applicable California law. When PMF indicated its intent to retain the promissory notes in satisfaction of the remaining obligation, TTI had twenty-one days to object. Cal. Comm.Code I 9505(2). If TTI had timely objected to PMF’s retention of the collateral in full satisfaction of the outstanding loan, then PMF would have been required to dispose of the collateral, putting the proceeds towards the satisfaction of the remaining loan balance. (Id.) TTI would have remained hable for any deficiency on the loan (i.e. if proceeds from the sale were insufficient to cover the loan), but it also would have received any excess funds from the sale (i.e. if proceeds from the sale exceeded the remaining obligation on the loan). If TTI had believed that the promissory notes had significant value at the time they received PMF’s Retention Letter, they certainly could have requested that PMF dispose of the notes, with TTI receiving the benefits of excess proceeds from that sale. We are troubled by the seemingly inequitable result in this case stemming from PMF’s misstatement of the remaining balance due on the loan. TTI, however, was not without legal recourse to remedy that erroneous balance — it could have pursued a cause of action under the California Commercial Code. TTI did not raise a such a claim below, however, relying solely on the SBIA provisions and common law theories of estoppel, conversion, and reliance in its complaint and trial brief before the bankruptcy court. In its reply to PMF’s objections to the bankruptcy court’s findings, TTI did not state as a separate issue that the notice violated the California Commercial Code, nor did it present the issue" }, { "docid": "1755261", "title": "", "text": "intent that the SBA Act as a whole, and § 687d, in particular, be enforced not by private plaintiffs but by the SBA. The legislative history of § 687d also evidences the congressional intent to leave enforcement of the Act to the SBA. The House Report gives this rationale for § 687d: “[Ajlthough the SBA has promulgated regulations on conflict of interest, it has been felt desirable to make doubly sure that adequate safeguards against possible conflicts of interest are in effect at all times.” Thus, faced with the problem of conflicts of interest in small business concerns, congress sought a solution by instructing the SBA to deal with and prevent conflicts of interest and by giving it the explicit authority to do so. In 1966, when it enacted 15 U.S.C. § 687f, congress adopted a similar approach to preventing breaches of trust and fiduciary duty, dishonesty and fraud by persons affiliated with small business investment companies. The House Report contained this statement of the statutory purpose: “The House and Senate bills are substantively the same and are equally intended to provide the SBA with needed tools to improve the operation of the small business investment company program . . . [T]he full potential of the SBIC program has remained unfulfilled because of the inability of SBA to deal promptly and effectively with violations of the SBI Act and regulations issued thereunder. This bill should fill that legislative gap.” Our reading of the language and legislative history of the SBI Act convince us that congress intended enforcement of the statute to be undertaken solely by the SBA. We think the establishment of a private right of action under the SBA Regulations would not only interfere with the smooth functioning of the regulatory process established by congress, but also conflict with the legislative intent. We hold, therefore, that a private right of action may not be maintained for violation of the SBA Regulations, and, accordingly, the fourth and fifth claims of the complaint must be dismissed. We turn now to plaintiff’s cross-motion. Plaintiff moves to dismiss both of the counterclaims alleged" }, { "docid": "3224287", "title": "", "text": "are based on allegations that the Disc at issue failed to meet requirements established by the FDA. In Wolicki-Gables, because the Eleventh Circuit found that Plaintiffs claims were preempted, the Court did not address the issue of whether Florida recognized private actions brought for violations of FDA regulations. 634 F.3d at 1302. However, district courts in this Circuit have consistently held that private actions like Plaintiffs that seek to enforce violations of FDA regulations are barred because Florida does not recognize such causes of action. See Wheeler v. DePuy Spine, Inc., 706 F.Supp.2d 1264, 1268 (S.D.Fla.2010) (plaintiffs claims for negligence and products liability, arising from the same product at issue in this case, failed because plaintiff did not identify a Florida law that provides a remedy based on an alleged violation of FDA regulations); Cook v. MillerCoors, LLC, 872 F.Supp.2d 1346, 1351 (M.D.Fla.2012) (plaintiff cannot rely on allegations regarding FDA violations because no private right of action exists under the Food, Drug and Cosmetic Act); Wolicki-Gables v. Arrow Intern., Inc., 641 F.Supp.2d 1270, 1292, aff'd, on other grounds by Wolicki-Gables, 634 F.3d at 1302 (“The Court recognizes that the FDCA and its regulations prohibit off-label promotion by manufacturers, but, even if such a claim were present in this case, there is no private right of action for violations of the FDCA”); Stokes, 2013 WL 1715427, at *4 (“to the extent Plaintiff bases his strict product liability, negligence, or failure to warn claims on Defendant’s alleged violations of the FDCA or FDA’s implementing regulations, those claims are dismissed for failure to state a claim [because] the Court cannot hear any claims by private litigants to enforce the regulations of the FDA.”) Finally, Plaintiff argues that should the Court decide to dismiss Plaintiffs complaint, the Court should dismiss the complaint without prejudice to permit plaintiff to assert a breach of express warranty claim. Defendant contends leave to file another amended complaint is unwarranted as any amendment to assert the breach of warranty claim would be futile. The Court agrees with Defendant’s argument. It is well established law in Florida that warranty-based claims," }, { "docid": "1226312", "title": "", "text": "(3) The Proximity of the Products The Sophistication of the Buyers Plaintiffs are not required to prove that their services are identical to those offered by defendants, but they must show that the services are “sufficiently related that customers are likely to confuse the source of origin.” Scarves by Vera, supra, 544 F.2d at 1173. The question of the proximity of the products is considered in connection with the question of the sophistication of the buyers because of the closeness of two products is, at least in part, a function of the extent to which purchasers can and do examine and distinguish them. Plaintiffs argue that the public does not distinguish between small consumer loans of the type made by plaintiffs and medium-sized business loans of the type made by defendant. However, we do not find that the plaintiffs have proven this to be so. First, plaintiffs and defendant serve entirely different markets. Plaintiffs make only consumer loans; defendant’s loans may be used for business purposes only, as provided by the SBIA. Plaintiffs’ loans are made only to individuals; defendant has made only a few loans to individuals, and those were solely for the purpose of acquiring working capital. Moreover, the differences in average amounts loaned — plaintiffs’ loans average $1,500., defendant’s $54,000. — is significant evidence of the difference in their respective markets. In addition, plaintiffs and defendant engage in entirely different marketing approaches. Plaintiffs advertise heavily in all of the major media. By contrast, defendant does no advertising or marketing of any kind, relying entirely on referrals. As Judge Weinfeld stated in a recent trademark case, the services offered by the parties “appeal to different customers, are sold in entirely different markets, exist for distinct purposes, and thus, are in no sense proximate products.” Information Clearing House, Inc. v. Find Magazine, 492 F.Supp. 147 (S.D. N.Y.1980). All of the evidence introduced as to the sophistication of the customers of defendant supports this conclusion. Three of defendant’s customers testified at trial, and they clearly qualified as “sophisticated purchasers” by virtue of their substantial business experience and advanced academic de" }, { "docid": "15722691", "title": "", "text": "these proceeds to TTI’s obligations on the loan, PMF calculated the remaining balance on the loan to be $403,238.94 and informed TTI of this remaining balance on May 13,1997. TTI did not respond to this letter. Interest continued to accrue on the defaulted loan, and on June 24, 1997, PMF sent a letter to TTI informing it that an outstanding balance of $413,667.91 remained on the loan and that PMF intended to retain the collateral in satisfaction of TTI’s obligation on the loan, pursuant to § 9505(2) of the California Commercial Code. TTI did not exercise its § 9505(2) right to object to this letter, and on July 18, 1997, PMF retained the two promissory notes. By its terms, the WHI Note was due on December 31, 1999. Sprint Corp. purchased WHI, a holder of wireless frequencies, sometime after PMF’s retention of the WHI Note and the Note being due, resulting in a dramatic increase in the Note’s value. When the Note became due, PMF received a payment of $3,834,262 in principal and interest on the WHI Note. TTI argues that PMF’s enormous gain on a usurious loan violates the SBIA and that return of the promissory notes (meaning the proceeds from the WHI Note and the WCCI Note itself) is a remedy authorized by the SBIA. TTI filed a Chapter 11 petition at the end of 1997. It then filed the instant action claiming that the interest rate charged by PMF violated the SBIA. In June 2000, the bankruptcy court found that PMF had charged interest in excess of fourteen percent and ordered PMF to pay TTI double the interest that TTI had paid on the loan. It also found that the balance actually due at the time of the Retention Letter was approximately $98,000, not $413,000, and that TTI had relied detrimentally on the erroneous balance in failing to object to PMF’s retention of the collateral. Thus, it also ordered PMF to return the two promissory notes. In January 2001, the district court adopted the findings and recommendations of the bankruptcy court, except that it found insufficient evidence" }, { "docid": "1226311", "title": "", "text": "gap, actual confusion, and the reciprocal of defendant’s good faith in adopting its own mark, the quality of defendant’s product, and the sophistication of the buyers.” Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). (1) The Strength of the Mark The strength of a name is to be judged by “its tendency to identify the goods [or services] sold under [that name] ... as emanating from a particular . . . source.” McGregor, supra, 599 F.2d at 1131. The discussion above of plaintiffs’ advertising, sales and name-recognition is equally applicable to the question of the strength of the name. Plaintiffs have demonstrated that the name Beneficial, as used by them, is strong. (2) The Degree of Similarity Between the Two Names Little needs to be said with respect to this factor, except to note that the words in defendants’ names other than Beneficial, that is, “Capital” and “Management,” do not substantially distinguish defendants’ business from that of Beneficial Finance. (3) The Proximity of the Products The Sophistication of the Buyers Plaintiffs are not required to prove that their services are identical to those offered by defendants, but they must show that the services are “sufficiently related that customers are likely to confuse the source of origin.” Scarves by Vera, supra, 544 F.2d at 1173. The question of the proximity of the products is considered in connection with the question of the sophistication of the buyers because of the closeness of two products is, at least in part, a function of the extent to which purchasers can and do examine and distinguish them. Plaintiffs argue that the public does not distinguish between small consumer loans of the type made by plaintiffs and medium-sized business loans of the type made by defendant. However, we do not find that the plaintiffs have proven this to be so. First, plaintiffs and defendant serve entirely different markets. Plaintiffs make only consumer loans; defendant’s loans may be used for business purposes only, as provided by the SBIA. Plaintiffs’ loans are" }, { "docid": "15722687", "title": "", "text": "EBEL, Circuit Judge. This case presents an issue of first impression: whether the usury remedy under the Small Business Investment Act (“SBIA”), 15 U.S.C. § 687, provides for the return of collateral retained upon foreclosure of the underlying usurious loan. Appellant Pacific Mezzanine Fund, L.P. (“PMF”) loaned $2,500,000 to Transworld Telecommunications, Inc. (“TTI”) under the provisions of the SBIA. TTI offered several forms of collateral to secure the loan, including two promissory notes. TTI failed to make one of its interest payments, and PMF’s subsequent retention of one of the promissory notes yielded a return in excess of $3,000,000 upon the note’s due date. TTI filed the instant action claiming that the interest charged by PMF violated the SBIA. The bankruptcy court found that PMF had charged excessive interest and ordered PMF to pay TTI double the interest that TTI had paid on the loan and further ordered PMF to return the two promissory notes. Upon appeal, the Unit ed States District Court for the District of Utah agreed that PMF had violated the SBIA by charging usurious interest and ordered payment of double the interest paid and return of the two promissory notes, or the proceeds therefrom. On appeal to our court, PMF concedes that the interest charged on the loan was usurious and does not contest the district court’s order to pay TTI double the interest that it paid on the loan. PMF contends, however, that the district court’s order to return the promissory notes (or the proceeds thereof) exceeds the statutory remedies provided for usurious loans under the SBIA. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we hold that the usury remedy detailed in the SBIA at 15 U.S.C. § 687(i)(4) does not provide for the return of collateral retained upon proper foreclosure of the underlying usurious loan. Accordingly, we reverse the district court’s order requiring PMF to return the promissory notes. I. BACKGROUND In June 1996, PMF, a small business investment company licensed under the SBIA, loaned $2,500,000 to TTI. The loan was subject to the provisions of the SBIA, and the parties agreed" }, { "docid": "15722694", "title": "", "text": "clear error. Phillips v. White (In re White), 25 F.3d 931, 933 (10th Cir.1994). B. Analysis 1. SBIA The SBIA provides consequences in the event that a lender charges a small business borrower an interest rate that exceeds the maximum limit authorized by statute. No case has interpreted the remedial provisions of the SBIA at issue in this case, which state: (A) If the maximum rate of interest authorized under paragraph (2) on any loan made by a small business investment company exceeds the rate which would be authorized by applicable State law if such State law were not preempted for purposes of this subsection, the charging of interest at any rate in excess of the rate authorized by paragraph (2) shall be deemed a forfeiture of the greater of (i) all interest which the loan carries with it, or (ii) all interest which has been agreed to be paid thereon. (B) In the case of any loan with respect to which there is a forfeiture of interest under subparagraph (A), the person who paid the interest may recover from a small business investment company making such loan an amount equal to twice the amount of interest paid on such loan. Such interest may be recovered in a civil action commenced in a court of appropriate jurisdiction not later than two years after the most recent payment of interest. 15 U.S.C. § 687(i)(4) (emphasis added). In this case, both parties agree that PMF charged TTI an interest rate greater than that permitted under the statute, and PMF concedes that it must pay TTI twice the interest that TTI paid on the usurious loan, in accordance with 15 U.S.C. § 687(i)(4)(B). The sole point of disagreement between the two parties on this issue is how to interpret the remedial provisions of § 687(i)(4), and specifically, whether the return of the promissory notes, as ordered by the district court, is a remedy permitted by the statute. PMF contends that the “forfeiture of interest” provision stated in § 687(i)(4)(A) provides a defense to borrowers if a lender sues to recover interest on a" }, { "docid": "15722703", "title": "", "text": "appeal that the $98,000 figure includes legitimate interest, to which PMF is not entitled under § 687(i)(4)(A) (charging excessive interest in violation of the statute “shall be deemed a forfeiture of the greater of (i) all interest which the loan carries with it, or (ii) all interest which has been agreed to be paid thereon”) (emphasis added). Even though we agree with TTI’s contention that all interest, including non-usurious, legitimate interest, is forfeited under § 687(i)(4)(A), we need not determine what the correct balance due on the loan was, because TTI concedes that at least $18,000 of valid non-interest debt remained on the loan at the time PMF retained the notes. (Aple Br. at 25 (“at most, only $18,638 of principal re-' mained”}.) The SBLAs remedial provisions at issue in this case, by their terms, deal with interest, and when the lender charges an excessive interest rate, requires the forfeiture of interest charged (§ 687(i)(4)(A)) and a return to the borrower of twice the interest paid (§ 687(i)(4)(B)). The underlying principal obligation, and the collateral that secures it, remain undisturbed by the statute. See United States v. Fidelity Capital Corp., 920 F.2d 827, 831 (11th Cir.1991) (“A loan or other transaction that violates either the [SBIA] or the regulations, however, is still valid and enforceable between the parties.”). Therefore, despite its violation of the SBIA by charging excessive interest, PMF retained its right to proceed with foreclosure procedures on the outstanding, non-interest debt on the loan, pursuant to the applicable California law. When PMF indicated its intent to retain the promissory notes in satisfaction of the remaining obligation, TTI had twenty-one days to object. Cal. Comm.Code I 9505(2). If TTI had timely objected to PMF’s retention of the collateral in full satisfaction of the outstanding loan, then PMF would have been required to dispose of the collateral, putting the proceeds towards the satisfaction of the remaining loan balance. (Id.) TTI would have remained hable for any deficiency on the loan (i.e. if proceeds from the sale were insufficient to cover the loan), but it also would have received any excess" } ]

[ { "docid": "21379986", "title": "", "text": "him by the United States because the “taxpayer” involved is not he, but is the Anchorage Bus Company, Inc. His further contention is that since § 6672 imposes a penalty “equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over”, the burden of proof provision contained in 26 U.S.C. § 7454 arises. That section provides: “Burden of proof in fraud and transferee cases “(a) Fraud. — In any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, the burden of proof in respect of such issue shall be upon the Secretary or his delegate.” In Bloom v. United States, 272 F.2d 215 (9th Cir. 1959), cert. denied 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146; this court effectively disposed of Molitor’s first contention as stated at page 221 of 272 F.2d: “In our view, Section 2707(a) [the predecessor to § 6672] imposes a separate and distinct liability upon the officer of the corporation who has the duty or is responsible for the collection and payment of the tax and who willfully fails either to collect the tax or to pay it over. While this liability is denominated ‘penalty’ it is ‘to be assessed and collected in the same manner as taxes are assessed and collected.’ While it might be said that the assessment made on appellant is derivative of the assessments made on the corporation, in that they both relate to taxes collected or withheld by the corporation, the liability imposed upon appellant by Section 2707(a) is statutory and in such cases the statutory limitations are controlling.” It is our view that a person determined to be liable under § 6672, by operation of this section, is in effect the taxpayer. Clearly, if the United States had sued the Anchorage Bus Company, Inc., to collect the taxes, the United States would have had the benefit of the presumption. United States v. Rindskopf, 105 U.S. 418, 26 L.Ed. 1131 (1882). We see no reason in principle why the benefit of the presumption should" } ]

[ { "docid": "20958359", "title": "", "text": "L.Ed. 308. To construe “acceptors” of wagers in the statute to include agents would violate this principle. Congress has used the word “acceptor” of wagers to designate the principal only. The fact that we are dealing with the meaning of an information here makes no difference. Defendant is entitled to assume, that the words “acceptor of wagers” where it appears in the information does not have a broader meaning than the same words have in the statute under which he has been charged. The court therefore holds that the information accused Pepe only of being a banker. Since the court’s charge permitted the jury to convict Pepe if it believed him to be a writer, it follows there was a variance between the information and the charge. This variance affected the substantial rights of the accused. It is now well settled in this Circuit that a court cannot permit a defendant to be tried on charges that have not been made in the indictment — no matter how overwhelming the evidence may be against him. Stirone v. United States, 1960, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; United States v. Raysor, 3 Cir., 1961, 294 F.2d 563; United States v. Lippi, D.Del.1961, 193 F.Supp. 441. In view of the conclusion of the court, it is unnecessary to discuss other points urged by defendants. Motion for new trial granted. . The statutes relevant to the decision in this ease are quoted below: 26 U.S.C.A. “§ 4421. Definitions “For purposes of this chapter — ■ “(1) Wager. — The term ‘wager’ means . * * “(C) any wager placed in a lottery conducted for profit. “(2) Lottery. — The term “lottery” includes the numbers game * * Subchapter A — Tax on Wagers 26 U.S.C.A. “§ 4401, Imposition of tax “(a) Wagers. — There shall be imposed on wagers, as defined in section 4421, an excise tax equal to 10 percent of the amount thereof. ;¡; Í5 $ if* *5* “(e) Persons liable for tax. — Each person who is engaged in the business of accepting wagers shall be liable" }, { "docid": "21321781", "title": "", "text": "to the effect that appellant was not engaged in any business made subject to the wagering tax assessed; that he did not hold a special occupational stamp to engage in such business and could not, therefore, be liable for the occupational tax assessed; and, that the assessments are based upon assumed facts and estimated amounts, and aré therefore arbitrary, capricious and wholly void. The assessment of the tax is, of course, presumptively correct and in order to establish federal court jurisdiction for injunctive relief, more is required than bare allegations of illegality, even though such allegations may ultimately be sustained. See: Licavoli v. Nixon, 6 Cir., 312 F.2d 200; Botta v. Scanlon, 2 Cir., 314 F.2d 392; and Vuin v. Burton, 6 Cir., 327 F.2d 967. Attached to the Government’s motion to dismiss is an exhibit showing that appellant had been convicted and sentenced upon his plea of nolo contendere to a one-count indictment charging him with conspiracy to evade wagering excise taxes. Moreover, in support of his motion for preliminary injunction, appellant attached a copy of the Statement Of Financial Condition (Internal Revenue Service Form 433), which he apparently submitted to the District Director with an offer in compromise of the alleged illegal assessment. It cannot be said in these circumstances that the Government’s claim is wholly without foundation, and under Enochs v. Williams Packing & Nav. Co., supra, § 7421(a) is applicable and requires the dismissal of the complaint. In this posture of the case, it is unnecessary to consider the adequacy of appellant’s legal remedy under the so-called pay-and-sue statute. See: 28 U.S. C. § 1346(a) (1). But it is not inappropriate to observe, however, that the “excise tax assessments may be divisible into a tax on each transaction or event, so that the full-payment rule would probably require no more than payment of a small amount.” Flora v. United States, 362 U.S. 145, 175, 80 S.Ct. 630, 646, 4 L.Ed.2d 623 (Footnote 38); and see: Vuin v. Burton, supra. Affirmed." }, { "docid": "20958352", "title": "", "text": "LAYTON, District Judge. Defendant has been convicted by a jury of unlawfully failing to pay a special tax imposed on wagering and to register as required by 26 U.S.C.A. §§ 4411 and 4412, respectively. Defendant has moved for a new trial on the technical grounds that there is a variance between the allegations in the information and the court’s charge to the jury. The information alleges that on several different dates defendant, Bruno Pepe, “who was then and there engaged in the business of accepting wagers as defined in Title 26, United States Code, Section 4421, did unlawfully fail to register and pay the special tax required by law to be paid by him in violation of Title 26 United States Code, Sections 4411, 4412 and 7262.” (Emphasis supplied.) Defendant does not deny that he was involved in a numbers game. The evidence leaves no doubt that he was. But the statute imposes a tax on only two figures in a numbers racket: the first is a person who is “engaged in the business of accepting wagers.” Section 4401(c). He is known informally as a “banker,” and in agency terminology would be designated a principal. A banker is the person who deals in the numbers and is the person against whom the player bets. United States v. Calamaro, 1957, 354 U.S. 351, 353, 77 S.Ct. 1138, 1 L.Ed.2d 1394. Bankers must pay a 10 % excise tax on the gross amount of wagers received, Section 4401(a); a special tax of $50 per year, Section 4411; and must register and furnish certain information to the official in charge of the Internal Revenue District, Section 4412(a). The second category of persons subject to tax are those who are engaged in “receiving wagers for or on behalf of” a banker. See Section 4411. Such persons are known informally as “writers” and are agents of the banker. “Writers” do the actual selling of the numbers to the public and record on slips the numbers sold to each player and the amount of his wager. United States v. Calamaro, 1957, 354 U.S. 351, 353, 77" }, { "docid": "12322489", "title": "", "text": "such individuals would themselves be liable for the special stamp tax imposed by 26 U.S. C.A. § 4411. That tax is imposed both upon persons liable for the ten percent excise tax under 26 U.S.C.A. § 4401 as proprietors or principals and also upon persons engaged as agents in receiving-wagers for or on behalf of any person so liable. Both the person who “accepts” and the person who “receives” wagers is liable for this tax. Hence the mere fact that the defendants in case at bar might have been employees instead of proprietors would not necessarily have excluded them as co-conspirators engaged in an attempt, inter alia, to defeat their own tax liability. Count 1 specifically alleges conspiracy to defraud the Government of tax revenue due under 26 U.S.C.A. § 4411 as well as under 26 U.S.C.A. § 4401. It now remains to discuss the particular position of the defendant Ciancutti. Primarily he was engaged in conducting a dice game, which was concededly not subject to federal tax, by reason of the above-quoted exemption provisions in the definition of “wager”. However, the testimony showed that he had free access to the railed-in area or enclosure behind the counter in the horse office, which was restricted to certain individuals (Tr. 143-44, 390, 397). He was also seen to handle money and to provide money for the operation of the horse office and to assist Sams and Phillips in going over the horse-bet slips. (Tr. 178-79). He met regularly with others at the Ken-mawr Hotel (Tr. 192). Ciancutti contends that he operated his business separately from the horse business, and merely leased half of the premises for use by Phillips (Tr. 202). Cf. United States v. Comer, 288 F.2d 174 (C.A. 6, 1961). The Government agents testified that they never saw Ciancutti accept a horse bet (Tr. 227). It would seem that the method in which the structure of the business was set up could have been taken to be a complex “front” rather than a genuine separa tion of Ciancutti’s individual business from the horse betting business. By acquitting Ciancutti on" }, { "docid": "23124927", "title": "", "text": "meet the taxpayer’s needs here. So that the computation could be tested, the divisible portion paid would have to include some of the alleged wagers encompassed by the Government’s challenged projection. . See Ianelli v. Long, 71-2 U.S.T.C. ¶ 16,021 (W.D.Pa.1971). Since Lucia is under a jeopardy assessment, the danger is accentuated by the fact that procedural delays may be occasioned in the pursuit of a refund suit. After payment of the tax, an administrative claim for refund must be filed, 26 U.S.O.A. § 7422(a) ; see Algonac Mfg. Co. v. United States, 428 F.2d 1241 (Ct.Cl.1970); National Newark and Essex Bank v. United States, 410 F.2d 789, 187 Ct.Cl. 609 (1969). Unless the Internal Revenue Service grants an exception, six months must pass from the administrative filing date until suit may be commenced. 26 U.S.C.A. § 6532(a) (1) and (3). . Our holding here does not conflict with Urban. In that tax refund suit, taxpayer’s brief pointed out that “[t]he sole question involved is whether or not the wagering excise tax and the wagering occupational stamp creating such tax are constitutional in that they violate the rights guaranteed under the Fifth Amendment.” Taxpayer had stipulated that the assessment against him was correct if the wagering tax scheme was constitutional. We merely held in Urban that, under that broad attack, Marchetti, Grosso, and United States Coin and Currency did not invalidate the wagering excise tax, 26 U.S.C.A. § 4401, and the wagering occupational tax, 26 U.S.C.A. § 4411. . See, e. g., California v. Latimer, 305 U.S. 255, 59 S.Ct. 166, 83 L.Ed. 159 (1938); Monge v. Smyth, 229 F.2d 361 (9th Cir. 1956), cert. denied, 351 U.S. 976, 76 S.Ct. 1055, 100 L.Ed. 1493; Reams v. Vrooman-Fehn Printing Co., 140 F.2d 237 (6th Cir. 1944). . 370 U.S. at 6, 82 S.Ct. at 1129, 8 L.Ed.2d 292. Enochs specifically contrasts § 7421(a), which prohibits injunctive relief against federal taxes without reference to the adequacy or inadequacy of a legal remedy, with 28 U.S.C.A. § 1341, which forbids the federal courts to entertain suits enjoining collection of state taxes “where" }, { "docid": "17530531", "title": "", "text": "CHOATE, District Judge. Three cases are involved in this appeal. Each of the complaints are substantially identical and the several plaintiffs below —appellants here — were each seeking a temporary and permanent injunction against gambling tax assessments and relief from tax liens imposed upon their properties. Upon the Collector’s motions the complaints were dismissed and this appeal is from the orders of dismissal. The plaintiffs below by their several complaints charged that on September 12, 1958, Benjamin Lassoff, Meyer Deckelbaum and Robert Lassoff each were assessed in the amount of $100,259.94 for the month of March 1956 and $110,004.52 for the period April 1st to April 19th, 1956, or a total assessment of $300,264.-46 for excise wagering taxes, penalties and statutory interest claimed to be due under Section 4401 et seq. Internal Revenue Code of 1954, 26 U.S.C.A. § 4401 et seq. Plaintiffs alleged that these assessments were unlawful, arbitrary, capricious and wholly void, for the reason that plaintiffs were not engaged in the business of accepting wagers on sports events or contests and that they did not conduct a wagering pool or lottery, and further alleged that they did not hold a special occupational stamp to engage in such business, and for those reasons were not liable, and could not be liable, for the impositions. Further, each of the aforenamed individuals averred that the levy against them was made without previous discussion, and that the basis of the assessments has not been disclosed, although protest has been made and a conference requested. They each further alleged that the defendant and his subordinates, acting without any valid basis, had proceeded to file and post notice of lien against each of their properties in the sum of $300,264.46, with interest accruing at the rate of over $1,000 per month. They further asserted that they do not have and cannot acquire funds or credits sufficient to pay the assessments, or provide a bond to guarantee payment thereof, and are therefore deprived of any means of contesting the illegal taxes. Plaintiffs also alleged that due to the enormity of the assessments it is" }, { "docid": "12322488", "title": "", "text": "a conspiracy to defeat its payment. The case does not actually hold that employees cannot under any circumstances be co-conspirators in such a conspiracy, or that only persons having a proprietary interest in the business can be such co-conspirators. In any event the conviction of Sams, Phillips, and Ciancutti on Count 1, in the light of the instructions given, if it be thought that a proprietary interest is requisite, may be taken as a finding that the jury found the necessary proprietary interest in these three defendants. In the Ingram case the employees who were held not to be co-conspirators were not themselves subject to any of the taxes involved. They were clerical employees in a “numbers” business, and were neither “writers” nor “bankers”. 360 U.S. at 675, 79 S.Ct. at 1317. Hence they were not subject to tax. United States v. DiPrimio, 209 F. Supp. 137, 140 (W.D.Pa., 1962). In the case at bar, however, each of the defendants convicted for conspiracy (except Ciancutti) was shown to have accepted or received bets himself. Hence such individuals would themselves be liable for the special stamp tax imposed by 26 U.S. C.A. § 4411. That tax is imposed both upon persons liable for the ten percent excise tax under 26 U.S.C.A. § 4401 as proprietors or principals and also upon persons engaged as agents in receiving-wagers for or on behalf of any person so liable. Both the person who “accepts” and the person who “receives” wagers is liable for this tax. Hence the mere fact that the defendants in case at bar might have been employees instead of proprietors would not necessarily have excluded them as co-conspirators engaged in an attempt, inter alia, to defeat their own tax liability. Count 1 specifically alleges conspiracy to defraud the Government of tax revenue due under 26 U.S.C.A. § 4411 as well as under 26 U.S.C.A. § 4401. It now remains to discuss the particular position of the defendant Ciancutti. Primarily he was engaged in conducting a dice game, which was concededly not subject to federal tax, by reason of the above-quoted exemption provisions" }, { "docid": "21371849", "title": "", "text": "denied, 372 U.S. 944, 83 S.Ct. 934, 9 L.Ed.2d 969 (1963). The conclusion is not conceded by Appellee. The fact that the Common Pleas Court of Ohio in a criminal case filed against Vuin found the search warrant defective, either as to execution or service, and suppressed the evidence, does not represent a legal determination which is binding upon the Federal District Court. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. Nor does the taxpayer establish the second of Williams Packing conditions for relief — that of showing equitable jurisdiction otherwise. The general rule is, of course, that equity will not intervene where an appropriate legal remedy is available. This court in Lassoff v. Gray, 266 F.2d 745 (6th Cir. 1959), held that a taxpayer facing a $300,000 assessment for excise (gambling) taxes and the consequent forced sale of valuable property in order to pay the tax and sue for relief was facing irreparable injury and held equitable jurisdiction was appropriate. Appellant herein relies strongly on Lassoff. Lassoff, however, was decided prior to Williams Packing, Licavoli and Botta. To the extent that there are distinctions, these latter cases must be regarded as prevailing. Also, the taxpayers in Lassoff had alleged that they were not engaged in the business of gambling, thereby alleging that the assessment was totally illegal and void, an allegation not present here. In addition, the sum here is considerably smaller; and there is no allegation of Appellant’s inability to pay or to submit a satisfactory bond. Further, in this sort of excise tax the tax is levied upon each transaction, 26 U.S.C.A. § 4401. Thus the taxpayer has the opportunity to test his liability by paying the tax on one wager, filing a claim for refund, 26 U.S.C.A. § 7422, and, if denied, suing to recover same, Flora v. United States, 362 U.S. 145, 171, n. 37, 80 S.Ct. 630, 4 L.Ed.2d 623. While division of a lump sum in circumstances such as the present instance might offer practical" }, { "docid": "6481700", "title": "", "text": "tax, proper assertion of the Fifth Amendment privilege under the rule of Marchetti and Grosso protects them from prosecution for an attempt to evade such payment. This charge should have been dismissed. Both convictions of each defendant are reversed and the indictments should be dismissed. Reversed. . Those who properly assert the constitutional privilege against self-incrimination may not be criminally prosecuted for failure to comply with the Federal wagering occupational tax statutes, either as to registration, or payment. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). . A person cannot be convicted for willful failure to pay the Federal excise tax on wagering because the payment would provide incriminating information in violation of his Fifth Amendment privilege against self-incrimination. Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). . 26 U.S.C. § 4411. Imposition of Taw. “There shall be imposed a special tax of $50 per year to be paid by each person who is liable for tax under section 4401 or who is engaged in receiving wagers for or on behalf of any person so liable.” . 26 U.S.C. § 4401. § 4401. Imposition of taw (a) Wagers. — There shall be imposed on wagers, as defined in section 4421, an excise tax equal to 10 percent’ of the amount thereof. (b) Amount of wager. — In determining' the amount of any wager for the purposes of this subchapter, all charges incident to the placing of such wager shall be included; except that if the taxpayer establishes, in accordance with regulations prescribed by the Secretary or his delegate, that an amount equal to the tax imposed by this subchapter has been collected as a separate charge from the person placing such wager, the amount so collected shall be excluded. (c) Persons liable for taw. — Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this sub-chapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and" }, { "docid": "23124925", "title": "", "text": "by Sections 4403 and 4423, a rationale probably abrogated by Marehettí and Grosso, Pinder is not authority for defending a projection that is arbitrary, capricious, and without factual foundation. . The attack on the projection and statistical computation does not relate to the tax on those wagers directly reflected by the seized betting slips or to any other portion of the assessment that liad an obvious factual basis. That portion of the assessment, however, can easily be extracted upon a proper showing by the Government in the early stages of remand proceedings. The matter on the record before us is not clearly divisible, so we leave to the District Court the task of determining such partial relief or denial thereof as may seem appropriate. Our holding here is limited to the proposition that the Government cannot, by coupling an arbitrary and capricious projection with an assessment that is obviously factual, escape the District Court’s jurisdiction outlined in Standard Nut Margarine Co.. . See, e. g., Bowers v. United States, supra; Thrower v. Miller, 440 F.2d 1186 (9th Cir. 1971); Kelly v. Lethert, 362 F.2d 629 (8th Cir. 1966). . See 9 Mertens’ Law of Federal Income Taxation § 50.08 (1971). . 26 U.S.C.A. § 7422; Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). “[Ejxcise tax assessments may be divisible into a tax on each transaction or event, so that the full-payment rule would probably require no more than payment of a small amount.” 362 U.S. at 175 n.3S, 80 S.Ct. at 646. See 362 U.S. at 171 n.37, 80 S.Ct. 630, for further discussion of this exception to the full-payment rule. See also Bowers v. United States, 423 F.2d 1207 (5th Cir. 1970); Cole v. Cardoza, 441 F.2d 1337 (6th Cir. 1971); Compton v. United States, 334 F.2d 212 (4th Cir. 1964), and District Court cases cited therein, 334 F.2d at 215 n.6; and Vuin v. Burton, 327 F.2d 967 (6th Cir. 1964). Of course, payment of the tax on wagering transactions directly represented by the betting slips held by the Government would not" }, { "docid": "21371850", "title": "", "text": "equitable jurisdiction was appropriate. Appellant herein relies strongly on Lassoff. Lassoff, however, was decided prior to Williams Packing, Licavoli and Botta. To the extent that there are distinctions, these latter cases must be regarded as prevailing. Also, the taxpayers in Lassoff had alleged that they were not engaged in the business of gambling, thereby alleging that the assessment was totally illegal and void, an allegation not present here. In addition, the sum here is considerably smaller; and there is no allegation of Appellant’s inability to pay or to submit a satisfactory bond. Further, in this sort of excise tax the tax is levied upon each transaction, 26 U.S.C.A. § 4401. Thus the taxpayer has the opportunity to test his liability by paying the tax on one wager, filing a claim for refund, 26 U.S.C.A. § 7422, and, if denied, suing to recover same, Flora v. United States, 362 U.S. 145, 171, n. 37, 80 S.Ct. 630, 4 L.Ed.2d 623. While division of a lump sum in circumstances such as the present instance might offer practical difficulties, this taxpayer has been assessed $77.91 for a gambling tax stamp which the government asserts he is liable to pay. To be entitled to the hearing sought Appellant taxpayer had to carry the “double burden” of showing that he has no adequate remedy at law, and that “it is clear that under no circumstances could the Government ultimately prevail.” We agree with the District Judge that Appellant carried neither. Affirmed. . Botta v. Scanlon, supra 314 F.2d at 394. . Enochs v. Williams Packing & Navigation Co., Inc., supra 370 U.S. at 7, 82 S. Ct. at 1129, 8 L.Ed.2d 292." }, { "docid": "2143122", "title": "", "text": "1972, through January 30, 1973. In accordance with the verdict, the District Court entered judgment for the Government for the entire amount of its counterclaim. No, Virginia (and Jose), There Is No Loophole As it existed in 1972, § 4401(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 4401(a), imposed a 10% excise tax on wagers. Under §§ 4401(c) and 4403, every person engaged in the business of accepting wagers is liable for the tax on all wagers placed with him and is required to keep a daily record showing the gross amount of such wagers. If, as in this case, a person fails to keep the record required by statute, the Commissioner of Internal Revenue is authorized to estimate the amount of wagers placed with that person by any reasonable method in order to compute his tax liability. See United States v. Firtel, 5 Cir., 1971, 446 F.2d 1005. Where the taxpayer pays a portion of the taxes as reconstructed and assessed by the IRS and then sues for a refund, the taxpayer must establish not only that the Commissioner’s assessment of taxes is in error, but also what the correct amount of his tax liability is. See United States v. Janis, 1976, 428 U.S. 433, 440-41, 96 S.Ct. 3021, 49 L.Ed.2d 1046; Heyman v. United States, 5 Cir., 1974, 497 F.2d 121. On the other hand, where the Government attempts to collect a tax by way of counterclaim in a refund suit, the taxpayer bears only the burden of proving the assessment erroneous. See Carson v. United States, 5 Cir., 1977, 560 F.2d 693, 696; Bar L Ranch, Inc. v. Phinney, 5 Cir., 1970, 426 F.2d 995, 998-99. Appellants argue that knowledge of the identity of the confidential informant was essential for them to meet this burden of proof. They claim that based on the informant’s statement in March 1973 that they were again operating a lottery, the informant might have been able to testify that they were not engaged in any lottery operations between September 1972 and February 1973. Therefore, they argue, it was error" }, { "docid": "4130561", "title": "", "text": "Omitted stamps.—* * * whenever any transaction or act upon which a tax is required to be paid by means of a stamp occurs without the use of the proper stamp, it shall be the duty of the Secretary or his delegate, upon such information as he can obtain, to estimate the amount of tax which has been omitted to be paid and to make assessment therefor upon the person or persons the Secretary or his delegate determines to be liable for such tax.” (Emphasis supplied.) The above words “by this title” refer to Title 26 of the United States Code. While it is true that the assessments must first be paid or bonded before they can be contested (Lassoff v. Gray, 266 F.2d 745, 747 (6th Cir. 1959)), the harshness of this requirement has been somewhat alleviated by allowing taxpayers to pay the tax on a separate wagering transaction and then filing a claim for refund. Flora v. United States, 362 U.S. 145, 171, n. 37, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). As previously stated, this procedure was available to appellant at the time the District Court rendered its opinion. Having concluded that appellants failed to sustain their burden of proving that the assessments are illegal, we need not consider whether the District Court otherwise had equitable jurisdiction. See Enochs, supra, 370 U.S. at 6-7, 82 S.Ct. 1125. On this point, however, we observe that appellants have an adequate legal remedy for resolution of their claims as indicated in Flora. Vuin v. Burton, supra, 327 F.2d at 970. We consider now appellants’ contention that the District Court erred in not de daring null and void the lien for taxes which was recorded with the Register of Deeds in Oakland County, Michigan. Our concern here is only with the issue of the validity of the tax liens as they relate to appellants’ home located at 25000 Skye Drive, Farmington, Michigan, in Oakland County. Initially we observe that while appellants did not specifically request the above declaration in the prayer of their complaint to the District Court, there were sufficient" }, { "docid": "20958360", "title": "", "text": "Stirone v. United States, 1960, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; United States v. Raysor, 3 Cir., 1961, 294 F.2d 563; United States v. Lippi, D.Del.1961, 193 F.Supp. 441. In view of the conclusion of the court, it is unnecessary to discuss other points urged by defendants. Motion for new trial granted. . The statutes relevant to the decision in this ease are quoted below: 26 U.S.C.A. “§ 4421. Definitions “For purposes of this chapter — ■ “(1) Wager. — The term ‘wager’ means . * * “(C) any wager placed in a lottery conducted for profit. “(2) Lottery. — The term “lottery” includes the numbers game * * Subchapter A — Tax on Wagers 26 U.S.C.A. “§ 4401, Imposition of tax “(a) Wagers. — There shall be imposed on wagers, as defined in section 4421, an excise tax equal to 10 percent of the amount thereof. ;¡; Í5 $ if* *5* “(e) Persons liable for tax. — Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subehapter on all wagers placed with him * »* Subchapter B — Occupational Tax 26 U.S.C.A. “§ 4411. Imposition of tax “There shall be imposed a special tax of $50 per year to be paid by each person who is liable for tax under section 4401 or who is engaged in receiving wagers for or on behalf of any person so liable.” 26 U.S.C.A. “§ 4412. Registration “(a) Requirement. — Each person required to pay a special tax under this subchapter shall register with the ofiicial in charge of the internal revenue district — • “(1) his name and place of residence; “(2) if he is liable for tax under sub-chapter A, each place of business where the activity which makes him so liable is carried on, and the name and place of residence of each person who is engaged in receiving wagers for him or on his behalf; and “(3) if he is engaged in receiving wagers for or on behalf of any person liable for" }, { "docid": "23124926", "title": "", "text": "1186 (9th Cir. 1971); Kelly v. Lethert, 362 F.2d 629 (8th Cir. 1966). . See 9 Mertens’ Law of Federal Income Taxation § 50.08 (1971). . 26 U.S.C.A. § 7422; Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). “[Ejxcise tax assessments may be divisible into a tax on each transaction or event, so that the full-payment rule would probably require no more than payment of a small amount.” 362 U.S. at 175 n.3S, 80 S.Ct. at 646. See 362 U.S. at 171 n.37, 80 S.Ct. 630, for further discussion of this exception to the full-payment rule. See also Bowers v. United States, 423 F.2d 1207 (5th Cir. 1970); Cole v. Cardoza, 441 F.2d 1337 (6th Cir. 1971); Compton v. United States, 334 F.2d 212 (4th Cir. 1964), and District Court cases cited therein, 334 F.2d at 215 n.6; and Vuin v. Burton, 327 F.2d 967 (6th Cir. 1964). Of course, payment of the tax on wagering transactions directly represented by the betting slips held by the Government would not meet the taxpayer’s needs here. So that the computation could be tested, the divisible portion paid would have to include some of the alleged wagers encompassed by the Government’s challenged projection. . See Ianelli v. Long, 71-2 U.S.T.C. ¶ 16,021 (W.D.Pa.1971). Since Lucia is under a jeopardy assessment, the danger is accentuated by the fact that procedural delays may be occasioned in the pursuit of a refund suit. After payment of the tax, an administrative claim for refund must be filed, 26 U.S.O.A. § 7422(a) ; see Algonac Mfg. Co. v. United States, 428 F.2d 1241 (Ct.Cl.1970); National Newark and Essex Bank v. United States, 410 F.2d 789, 187 Ct.Cl. 609 (1969). Unless the Internal Revenue Service grants an exception, six months must pass from the administrative filing date until suit may be commenced. 26 U.S.C.A. § 6532(a) (1) and (3). . Our holding here does not conflict with Urban. In that tax refund suit, taxpayer’s brief pointed out that “[t]he sole question involved is whether or not the wagering excise tax and the wagering" }, { "docid": "14320334", "title": "", "text": "the following paragraph: As a result of my investigation I believe that Patrick has never filed any wagering tax returns for the money he received from his gambling business. As you know gamblers deal only in cash, and keep no records or any bank accounts. Usually they maintain some tangible assets, but of such a nature that can be quickly liquidated. I suggest the Internal Revenue Service take immediate steps to effect the collection of un paid gambling taxes, because if normal procedures are followed any tangible assets will be quickly dissipated, and the collection of the taxes jeopardized. . The government’s motion for that order authorizing release of excerpts from the transcripts of Patrick’s Grand Jury testimony and delivery of those excerpts to the Internal Revenue Service expressly stated that the purpose of such release was to determine “(1) whether there have been criminal violations of Title 26, United States Code; and (2) whether there are additional civil tax liabilities due and owing to the United States.” . The recommendation for jeopardy assessment submitted to the acting District Director for approval gave the following reasons for a jeopardy assessment: “Mr. Epstein and Mr. Patrick have shown noncompliance in regard to filing Federal Excise Tax Forms 730 and Forms 11-c. Mr. Patrick’s testimony establishes the fact that they were engaged in the business of accepting wagers; therefore, the respective returns should have been filed. “Internal Revenue Manual Section 4584.5 is applicable and establishes a prima facie jeopardy case. Failure to take immediate action to levy and seize Mr. Patrick’s and Mr. Epstein’s assets may preclude future collection of the tax.” . An excise tax in the amount of 10% of the wagers accepted is imposed by 26 U.S.C. § 4401. A special tax of $50 per year to be paid by each person who is liable for tax under § 4401 is imposed by 26 U.S.C. § 4411. Notice of the jeopardy assessments ($835,721 wagering tax and $237 occupational tax) and levy for that amount were sent to Patrick on April 19, 1974. Notice of Jeopardy Assessment was sent to" }, { "docid": "4130560", "title": "", "text": "liable for the $14,744.58 assessed or for any part thereof. See Vuin v. Burton, 327 F.2d 967, 970 (6th Cir. 1964). We find equally unconvincing appellants’ argument that section 26 U.S.C. 6201 does not authorize the assessments herein. A proper reading of sections 6201(a) and (a) (2) (A) reveals that where a taxpayer has not paid taxes normally paid by stamp, the Secretary or his representative is authorized to make assessments for all taxes imposed under the Internal Revenue laws. See generally Mensik v. Long, 261 F.2d 45 (7th Cir. 1958). Sections 6201(a) and (a) (2) (A) read: “Sec. 6201 ASSESSMENT AUTHORITY “(a) Authority of Secretary or Delegate.—The Secretary or his delegate is authorized and required to make * * * assessments of all taxes * * * imposed by this title, * * * which have not been duly paid by stamp at the time and in the manner provided by law. Such authority shall extend to and include the following: * * * * * * “(2) Unpaid taxes payable by stamp.— “(A) Omitted stamps.—* * * whenever any transaction or act upon which a tax is required to be paid by means of a stamp occurs without the use of the proper stamp, it shall be the duty of the Secretary or his delegate, upon such information as he can obtain, to estimate the amount of tax which has been omitted to be paid and to make assessment therefor upon the person or persons the Secretary or his delegate determines to be liable for such tax.” (Emphasis supplied.) The above words “by this title” refer to Title 26 of the United States Code. While it is true that the assessments must first be paid or bonded before they can be contested (Lassoff v. Gray, 266 F.2d 745, 747 (6th Cir. 1959)), the harshness of this requirement has been somewhat alleviated by allowing taxpayers to pay the tax on a separate wagering transaction and then filing a claim for refund. Flora v. United States, 362 U.S. 145, 171, n. 37, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). As" }, { "docid": "23124917", "title": "", "text": "(b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” . 370 U.S. at 7, 82 S.Ct. at 1129; see Bowers v. United States, 423 F.2d 1207 (5th Cir. 1970). . 26 U.S.C.A. § 4401(a). “Imposition of tax (a) Wagers. — There shall be imposed on wagers, as defined in section 4421, an excise tax equal to 10 percent of the amount thereof. (b) Amount of wager. — In determining the amount of any wager for the purposes of this subchapter, all charges incident to the placing of such wager shall be included; except that if the taxpayer establishes, in accordance with regulations prescribed by the Secretary or his delegate, that an amount equal to the tax imposed by this sub-chapter has been collected as a separate charge from the person placing such wager, the amount so collected shall be excluded. (c) Persons liable for tax. — Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this sub-chapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this sub-chapter on all wagers placed in such pool or lottery. Any person required to register under section 4412 who receives wagers for or on behalf of another person without having registered under section 4412 the name and place of residence of such other person shall be liable for and shall pay the tax under this subchapter on all such wagers received by him.” . 26 U.S.O.A. § 6501(a). “Limitations on assessment and collection (a) General rule. — Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) or, if the tax is payable by stamp," }, { "docid": "21484168", "title": "", "text": "fairness of judicial proceedings.” This seems to be the general criterion which the courts have followed. United States v. Bazzell, 7 Cir., 187 F.2d 878; Smith v. United States, 9 Cir., 173 F.2d 181; Robertson v. United States, 84 U.S.App. D.C. 185, 171 F.2d 345; Benson v. United States, 5 Cir., 112 F.2d 422; United States v. Lawrenson, 4 Cir., 298 F.2d 880, 884. An examination of the statutes, which have been adverted to heretofore, §§ 4401, 4411, 4412, 4421, 26 U.S.C.A., reveals there is a differentiation between a banker and numbers writer, that is between a person who is engaged in the business of accepting wagers, a banker and a receiver, one who receives wagers for or on behalf of any person. This differentiation is set out in United States v. Calamaro, 354 U.S. 351 at 353, 77 S. Ct. 1138, 1 L.Ed.2d 1394. While, in that case, under the facts there obtaining, the Court held that the acceptor and receiver were labels which could be interchanged —were different sides of the same coin— by reason of the fact that the particular problem involved was whether or not a pick-up man who picked up the slips from a numbers writer or receiver and carried them to the banker, was an individual who came within the intendment of the statute, making him criminally liable. The Court held he was not. It is submitted, United States v. Calamaro, supra, is not to be construed as holding that no differentiation obtains in the various sections of the statute here in question. This for the reason that with respect to a banker, the person against whom the player bets, must pay a 10% excise tax on the gross amount of the wagers he receives, pursuant to § 4401 (a), as well as a special tax of $50 per year, as set forth in § 4411, and, additionally, he must register and furnish certain information to the Internal Revenue District in which he is located, § 4412 (a). However, with respect to a person who receives wagers, a writer for or on behalf of" }, { "docid": "21484184", "title": "", "text": "year in jail, he imposed a fine of $4,000 plus costs of prosecution, $2,000 on counts one and three and $50 on count two and it is submitted that the court was acting within its discretion in so doing. The remaining errors assigned are without merit. Accordingly, the judgment of conviction and sentence will be affirmed. . Section 4411 of Title 26 United States Code, provides: “There shall be imposed a special tax of $50 per year to be paid by each person who is liable for tax under Section 4401 or who is engaged in receiving wagers for or on behalf of any person so liable.” (26 U.S.O. § 4401(c), as amended, provides: “Persons liable for tax. — Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subehapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this subchapter on all wagers placed in such pool or lottery. Any person required to register under Section 4412 who receives wagers for or on behalf of another person without having registered under Section 4412 the name and place of residence of such other person shall be liable for and shall pay the tax under this subchapter on ail such wagers received by him.”) . Section 4412 of Title 26 United States Code, provides: Registration “(a) Requirement. — Each person required to pay a special tax under this subchapter shall register with the official in charge of the internal revenue district — (1) his name and place of residence; (2) if he is liable for tax under subchapter A, each place of business where the activity which mates him so liable is carried on, and the name and place of residence of each person who is engaged in receiving wagers for him or on his behalf; and (3) if he is engaged in receiving wagers for or on behalf of any person liable *for tax under subchapter A, the name and place of" } ]

[ { "docid": "20311232", "title": "", "text": "Court reconsider and vacate the remanding of the case to the Superior Court; and (3) the Court reconsider and vacate its overruling of Defendant’s Objection to Plaintiffs Jury Demand. After a telephonic hearing on September 24, 2009, the Court has come to the following conclusions of law. Conclusions of Law A. Defendant has not satisfied the Eleventh Circuit’s four pronged test to determine whether good cause exists to set aside a default. Setting aside an entry of default is governed by Federal Rule of Civil Procedure 55(c) which is made applicable to adversary proceedings in bankruptcy cases by Federal Rule of Bankruptcy Procedure 7055. In order for a court to set aside an entry of default, “good cause” must be shown. Fed. R. BankR.P. 7055; see EEOC v. Mike Smith Pontiac GMC, Inc., 896 F.2d 524, 527-28 (11th Cir.1990) (holding that “good cause” is the standard for setting aside an entry of default and “excusable neglect” is the standard employed in setting aside a default judgment). The “good cause” standard for setting aside an entry of default pursuant to Rule 55(c) is less rigorous than the “excusable neglect” standard set by Rule 60(b). See id. Whether or not good cause exists for the setting aside of an entry of default under Rule 55(c) is a matter lieing within the sound discretion of the trial judge, such discretion to be exercised with due regard to the peculiar facts and circumstances surrounding each case. See Turner Broadcasting System, Inc. v. Sanyo Electric, Inc. et. al., 33 B.R. 996, 1001 (N.D.Ga.1983). In order to determine whether good cause exists to set aside a default, courts in the Eleventh Circuit look to the following four pronged test: (1) Whether the defaulting party took prompt action to vacate the default; (2) Whether the defaulting party provides a plausible excuse for the default; (3) Whether the defaulting party provides a meritorious defense; and (4) Whether the party not in default will be prejudiced if the default is set aside. See Cielinski v. Sandlin (In re Sandlin), 2002 WL 934564, *2-3, 2002 Bankr.LEXIS 1155, *6-7 (Bankr.M.D.Ga.2002)(citing Turner" } ]

[ { "docid": "16421028", "title": "", "text": "and entered a default judgment for $113,274.75 together with interest. On March 21, 2002, Mr. Bonfitto’s attorney filed the motion here to vacate default judgment. DISCUSSION The issue is whether Defendant has provided sufficient grounds to justify vacating the default judgment. Generally, the courts of the Third Circuit have disfavored default judgments and have held that any doubt as to whether a default judgment should be vacated must be resolved in favor of the setting aside the default and reaching a decision on the merits. See Zawadski de Bueno v. Bueno Castro, 822 F.2d 416, 420 (3d Cir.1987); United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194-95 (3d Cir.1984); Gross v. Stereo Component Sys., Inc., 700 F.2d 120, 122 (3d Cir.1983); Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir.1951). According to Civil Procedure Rule 55(c), a bankruptcy court may set aside the entry of a default “for good cause shown.” If a judgment by default has been entered by the court, it may be set aside in accordance with Civil Procedure Rule 60(b). Civil Procedure Rule 60(b) controls in cases where both an entry of default and a default judgment exist. See Massaro v. Massaro (In re Massaro), 235 B.R. 757, 761 (Bankr.D.N.J.1999). A motion to vacate a default judgment based on excusable neglect must be filed within one year of the date the default was entered. Civil Procedure Rule 60(b). In deciding a motion to vacate a default judgment, the Third Circuit has stated that lower courts must consider the following factors: (1) whether the plaintiff will be prejudiced if the judgment is vacat ed; (2) whether the defendant has a meritorious defense to the underlying action; and (3) whether the default was the result of the defendant’s culpable conduct. See $55,518.05 in U.S. Currency, 728 F.2d at 195; Gross, 700 F.2d at 122. These standards apply regardless of whether the motion to vacate is brought under Civil Procedure Rule 55(c) or Rule 60(b). See $55,518.05 in U.S. Currency, 728 F.2d at 195. The Third Circuit has determined that the second factor," }, { "docid": "18808182", "title": "", "text": "substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.1986). The court, prior to entry of a default judgment, has an independent duty to determine the sufficiency of a claim, as stated in Rule 55(b)(2): [T]he court may conduct such hearings or order such references as it deems necessary and proper.... The complaint of the FDIC fails to meet the third factor identified in Eitel. The record shows that the debtors have debts total-ling some 56 million dollars. There is no indication in the record that the court exercised its discretion prior to entering what is tantamount to a judgment in that sum against the debtors simply on the basis of the debtors’ default. The trial court should not have entered a default judgment based on an insufficient complaint without first taking those steps necessary to satisfy itself as to the propriety of entry of the judgment. Had debtors moved for dismissal of the complaint under Rule 12(b)(6), the court would have dismissed it unless the FDIC amended it. The FDIC might contend that the debtors have been rewarded for ignoring process rather than responding to it, and have improved their position by bypassing the required showing of excusable neglect required to set aside a default judgment unddr Rule 60(b). This benefit is marginal, and is due in some measure to the pleading errors of the plaintiffs complaint. The FDIC has been granted a default that may not be set aside without a showing of good cause. Bankruptcy Rule 7055; Rule 55(c). The debtors may only move to set aside this default by leave of the court. Rule 55(a)(2). The court is not required to set aside the default and may conduct such hearings as it deems necessary pursuant to Rule 55(b)(2). We do not hold that a" }, { "docid": "17574384", "title": "", "text": "to file a timely answer, and that good cause did not exist to set aside the default. Br. of Appellant 8-13, ECF No. 4. Setting aside an entry of default is governed by Federal Rule of Civil Procedure 55(c), which is made applicable to adversary proceedings in bankruptcy cases by Federal Rule of Bankruptcy Procedure 7055. In order for a court to set aside an entry of default, “good cause” must be shown. Fed. R. Bankr.P. 7055; see also Cielinski v. Sandlin (In re Sandlin), No. 01-40209, 00-4016, 2002 WL 934564, at *2 (Bankr.M.D.Ga. Feb.19, 2002). A four-prong test is applied to determine whether good cause exists: “(1) whether the defaulting party took prompt action to vacate the default; (2) whether the defaulting party provided a plausible excuse for the default; (3) whether the defaulting party presented a meritorious defense; and (4) whether the party not in default will be prejudiced if the default is set aside.” Id. at *3. Under the first factor, a party-need only act to set aside the default within a reasonable time after the entry of default. Id. Here, the Bankruptcy Court found that Winchester acted to set aside the default within a reasonable time because he filed his motion for reconsideration only twelve days after the Bankruptcy Court entered the order of default. Mem. Order on Mot. to Reconsider 6. The Court does not find this conclusion by the Bankruptcy Court erroneous. Under the second factor, a court must determine whether the defaulting party has provided a plausible excuse for the default. Here, the Bankruptcy Court found that Winchester’s excuse for the default — that he “believed that the sale automatically substituted him for the Trustee in th[e] adversary proceeding, such that the filing of another response was unnecessary” — was unreasonable under the circumstances, because even if the sale automatically substituted him for the Trustee, such substitution could only extend to the Trustee’s § 542(a) Counterclaim. Id. at 6-7. The Court finds that this determination by the Bankruptcy Court does not constitute reversible error. Under the third factor, a court must determine whether" }, { "docid": "17574383", "title": "", "text": "Newlin entitled to a jury trial, and remanded the adversary proceeding between Winchester and Newlin to the Superior Court. Newlin appeals the Bankruptcy Court’s rulings that permitted Winchester to pursue the Trustee’s § 542(a) Counterclaim against Newlin that was assigned to Winchester by the Trustee. The following issues are presented for resolution in these appeals: (1) whether the Bankruptcy Court erred in finding that Winchester was in default due to his failure to file a timely answer and that good cause did not exist to set aside the default; (2) whether the Bankruptcy Court erred in ordering a remand of the case to the Superior Court of Muscogee County; (3) whether the Bankruptcy Court erred in overruling Winchester’s objection to Newlin’s jury trial demands; and (4) whether the Bankruptcy Court erred by finding that Winchester had standing to pursue the § 542(a) claim assigned to him by the Trustee. The Court will address each issue in turn. I. Winchester’s Appeal A. Default First, Winchester contends that the Bankruptcy Court erred in finding that he failed to file a timely answer, and that good cause did not exist to set aside the default. Br. of Appellant 8-13, ECF No. 4. Setting aside an entry of default is governed by Federal Rule of Civil Procedure 55(c), which is made applicable to adversary proceedings in bankruptcy cases by Federal Rule of Bankruptcy Procedure 7055. In order for a court to set aside an entry of default, “good cause” must be shown. Fed. R. Bankr.P. 7055; see also Cielinski v. Sandlin (In re Sandlin), No. 01-40209, 00-4016, 2002 WL 934564, at *2 (Bankr.M.D.Ga. Feb.19, 2002). A four-prong test is applied to determine whether good cause exists: “(1) whether the defaulting party took prompt action to vacate the default; (2) whether the defaulting party provided a plausible excuse for the default; (3) whether the defaulting party presented a meritorious defense; and (4) whether the party not in default will be prejudiced if the default is set aside.” Id. at *3. Under the first factor, a party-need only act to set aside the default within a" }, { "docid": "3020957", "title": "", "text": "factors appropriately considered in entering default judgment and those considered in ruling on a motion to set aside such a judgment. Ascribing “inherent logic” to its approach, the Schijf court concluded that, just as he or she would in ruling on a motion to set aside, “a trial judge should consider [the “good cause” factors of Rule 55(c)] in deciding whether to grant a motion for entry of default and to enter a default judgment.” 199 B.R. at 442. See also In re Schnell, 148 B.R. at 366 (using the elements of a “good cause” review in analyzing whether the trial court abused its discretion in entering a default judgment). Thus, our review of the trial court’s orders is governed by the “good cause” standard of Rule 55(c). Fed.R.Civ.P. 55(c) (“For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).”); Fed. R.Bankr.P. 7055 (making Fed.R.Civ.P. 55 applicable to adversary proceedings). Although there can be no immutable, “precise formula,” some “fairly universal” “general guidelines” have evolved. Coon, 867 F.2d at 76. Accord Schiff, 199 B.R. at 441. In denying William’s motion to set aside the default judgment, the trial court should have considered, at a minimum, (1) whether his default was willful, (2) if setting aside the default would prejudice Leila, and/or (3) the merits of William’s defense. See Coon, 867 F.2d at 76; Schiff, 199 B.R. at 441-42; In re Schnell, 148 B.R. at 366. This list is not exclusive: other factors that might be considered include “the proffered explanation for the default, the good faith of the parties, the amount of money involved, and the timing of the motion.” Coon, 867 F.2d at 76. Accord Schiff, 199 B.R. at 442. See also In re Dierschke, 975 F.2d at 183-84 (describing trio of good cause factors as disjunctive and “not talismanic,” citing public interest implications, the extent of the financial loss to the defendant, and expeditiousness of the defendant in correcting the default). In Schijf the district court" }, { "docid": "6647624", "title": "", "text": "discusses in his motion, his business records were stored in boxes, that’s, to put it bluntly, his problem. That is not [Peralta's] problem. [Morris] provided very little evidence to suggest that sending official business correspondence by regular mail was insufficient notice to him. Tr., Nov. 4, 2003, atp. 26. . The Restatement articulates a rule implicit in Mullane: (2) If the party responsible for effectuating notice knows that the person to be notified is so situated or is in such condition that ordinarily employed means of notice will be ineffectual, other means must be used that actually notify, or have a reasonable certainty of resulting in actual notice to, the person or someone who can adequately represent him. Restatement (2d) of Judgments § 2(2). Mullane requires: \"notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314, 70 S.Ct. 652. . Rule 60(b)(1) provides: (b) 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; fed. r civ. p. 60(b)(1), incorporated by Fed. R. Bankr P. 9024. . Rule 55(c) provides: (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). Fed. R. Civ. P. 55(c), incorporated by Fed. R. Bankr. P. 7055. While the analysis of whether to vacate a default judgment is derived from the Rule 55(c) \"good cause” standard for vacating a default, the concepts are distinct. Thus, it may be possible to reopen a judgment for the purposes of reassessing damages without disturbing a default addressed to liability. See Haw. Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir.1986); 10A Wright & Miller § 2694; 10 Moore's § 55.50[l][a]." }, { "docid": "20311231", "title": "", "text": "August 12, 2009. After said hearing, the Court entered its “Order Resolving Various Motions” on August 13, 2009. Such Order held as follows: 1. Defendant is in default as to liability only due to his failure to file a response to the Complaint within the time allowed by the Federal Rules of Civil Procedure. 2. Defendant’s untimely Answer and Counterclaim are stricken. 3. Defendant’s Motion to Dismiss pursuant to FRCP 12 is denied. 4. The Court’s Order Denying Motion to Substitute Parties is set aside. 5. Defendant’s Motion to Substitute Parties is granted. 6. Plaintiffs Motion to Dismiss Trustee’s Counterclaim is denied and the Court’s Order Granting Motion to Dismiss Counterclaim by Intervening Party is set aside. 7. Defendant has standing to pursue the Trustee’s Counterclaim. 8. Defendant’s Objection to the Jury-Demand filed by Plaintiff is overruled. On August 24, 2009, Defendant filed his “Motion for Reconsideration of Order Resolving Various Pending Motions” (the “Motion for Reconsideration”), which Motion requests that (1) the Court reconsider and vacate the striking of Defendant’s untimely Answer; (2) the Court reconsider and vacate the remanding of the case to the Superior Court; and (3) the Court reconsider and vacate its overruling of Defendant’s Objection to Plaintiffs Jury Demand. After a telephonic hearing on September 24, 2009, the Court has come to the following conclusions of law. Conclusions of Law A. Defendant has not satisfied the Eleventh Circuit’s four pronged test to determine whether good cause exists to set aside a default. Setting aside an entry of default is governed by Federal Rule of Civil Procedure 55(c) which is made applicable to adversary proceedings in bankruptcy cases by Federal Rule of Bankruptcy Procedure 7055. In order for a court to set aside an entry of default, “good cause” must be shown. Fed. R. BankR.P. 7055; see EEOC v. Mike Smith Pontiac GMC, Inc., 896 F.2d 524, 527-28 (11th Cir.1990) (holding that “good cause” is the standard for setting aside an entry of default and “excusable neglect” is the standard employed in setting aside a default judgment). The “good cause” standard for setting aside an entry" }, { "docid": "710584", "title": "", "text": "(2) “whether setting [the default] aside would prejudice the adversary,” (3) “whether the defaulting party presents a meritorious defense,” and (4) “whether the defaulting party acted promptly to correct the default.” Id.; Turner Broadcasting Sys., Inc. v. Sanyo Electric, Inc., 33 B.R. 996, 1001 (N.D.Ga.1983), aff'd without op., 742 F.2d 1465 (11th Cir.1984); see also Kelly v. Florida, No. 06-11258, 2007 WL 295419 (11th Cir.2007) (unpublished) (quoting Compania Interamericana, supra, for the proposition that the Eleventh Circuit has established “ ‘some general guidelines,’ ” which although not “ ‘talismanie,’” may guide the court’s Rule 55(c) “good cause” determination). In short, the essence of Rule 55(c) is that an entry of default may be set aside if the party in default demonstrates “good cause,” Fed. R. Civ. 55(c), and, as established in this circuit, the foregoing factors provide a means to assist the court in ascertaining whether such cause exists. See Compania Interamericana, 88 F.3d at 951 (“Whatever factors are employed, the imperative is that they be regarded simply as a means of identifying circumstances which warrant the finding of ‘good cause’ to set aside a default.”). On the other hand, while the inquiries are similar under the “good cause” and “excusable neglect” standards, the Eleventh Circuit applies the foregoing factors “more rigorously]” in the context of considering whether to set aside a default judgment. See Mike Smith Pontiac GMC, 896 F.2d at 528; see also Chrysler Credit Corp. v. Macino, 710 F.2d 363, 368 (7th Cir.1983) (“Although the elements for relief under Rule 55(c) and Rule 60(b) are substantially the same, the standards are applied more stringently when considering a motion to vacate a default judgment under Rule 60(b).”). The parties disagree on the standard of review applicable to Defendant’s motion to set aside the default judgment on the issue of liability. Defendant maintains that it is entitled to Rule 55(c)’s “good cause” standard of review because the court has not yet deter mined damages (see Doc. No. 24 at 3), while Plaintiff urges the court to review the motion under the more stringent “excusable neglect” standard. (See Doc. No." }, { "docid": "3020956", "title": "", "text": "as one unit. See Schiff, 199 B.R. at 441. Our conclusion on that score obviates the need to address William’s appeal of the court’s order denying his motion for reconsideration. Our approach to William’s appeal is guided by Schiff. In that case the district court reviewed the bankruptcy court’s entry of default judgment for an adversary proceeding defendant’s failure to answer. Although our case involves a failure to appear at a scheduled pre-trial conference, rather than a failure to plead, we do not agree with Leila that the difference is material to our determination of what factors the court below should have considered in entering the default judgment and in ruling on William’s motion to set it aside. The factors properly considered in determining the appropriateness of entering default judgment do not vary according to the nature of the default. They are, by design, touchstones to be consulted and applied to the unique facts of each case. See Coon, 867 F.2d at 76. We agree with Schijf that there is no meaningful distinction between the factors appropriately considered in entering default judgment and those considered in ruling on a motion to set aside such a judgment. Ascribing “inherent logic” to its approach, the Schijf court concluded that, just as he or she would in ruling on a motion to set aside, “a trial judge should consider [the “good cause” factors of Rule 55(c)] in deciding whether to grant a motion for entry of default and to enter a default judgment.” 199 B.R. at 442. See also In re Schnell, 148 B.R. at 366 (using the elements of a “good cause” review in analyzing whether the trial court abused its discretion in entering a default judgment). Thus, our review of the trial court’s orders is governed by the “good cause” standard of Rule 55(c). Fed.R.Civ.P. 55(c) (“For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).”); Fed. R.Bankr.P. 7055 (making Fed.R.Civ.P. 55 applicable to adversary proceedings). Although there can" }, { "docid": "15939456", "title": "", "text": "Defendant’s attorney proffered that Plaintiffs adversary caused Defendant psychological distress, and Defendant suffered marital difficulties as a result of his bankruptcy. According to Defendant’s attorney, Defendant coped with these problems by ignoring them. Additionally, Defendant wanted to avoid the loss of wages he would suffer if he took time off from work to discuss Plaintiffs adversary with his counsel. Conclusions of Law 1. Defendant’s Oral Motion to Open the Default The Court will deny Defendant’s oral motion to open the default entered against him on July 7, 2000. Pursuant to Federal Rule of Bankruptcy Procedure 7055, Federal Rule of Civil Procedure 55(c) governs Defendant’s motion. Rule 55(c) provides, “For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Fed.R.Civ.P. 55(c). The more lenient “good cause” standard of Rule 55(c), as opposed to the “excusable neglect” standard of Rule 60(b), will be applied because the Court has not entered default judgment. See In re Tires and Terms of Columbus, Inc., Ch. 7 Case No. 99-40719-JTL, Adv. No. 00-4072, slip op. at 4, 2000 WL 33324535 (Bankr.M.D.Ga. Oct. 4, 2000) (citing In re Rogers, 160 B.R. 249, 251-52 (Bankr.N.D.Ga.1993)). In order to uphold the policy favoring decisions based on cases’ merits, the Court will address the four factors that courts in the Eleventh Circuit consider when seeking the “good cause” necessary to open a default. See id. These factors include consideration of (1) the promptness of the defaulting party’s action to vacate the default, (2) the plausibility of the defaulting party’s excuse for the default, (3) the merit of any defense the defaulting party might wish to present in response to the underlying action, and (4) any prejudice the party not in default might suffer if the default is opened. Id., slip op. at 4-5 (citing Turner Broad. Sys., Inc. v. Sanyo Elec., Inc., 33 B.R. 996, 1001 (N.D.Ga. 1983), affd 742 F.2d 1465 (11th Cir.1984)); see also In re Rogers, 160 B.R. at 252. Defendant’s motion fails on all" }, { "docid": "710583", "title": "", "text": "of the judgment.” Fed.R.Civ.P. 60(1), (6). “The importance of distinguishing between an entry of default and a default judgment lies in the standard to be applied in determining whether or not to set aside the default.” EEOC v. Mike Smith Pontiac GMC, Inc., 896 F.2d 524, 528 (11th Cir.1990). “The excusable neglect standard that courts apply in setting aside a default judgment is more rigorous than the good cause standard that is utilized in setting aside an entry of default.” Id.; Jones v. Harrell, 858 F.2d 667, 669 (11th Cir.1988). The Eleventh Circuit has expressed that the “good cause” standard is a liberal one. Compania Interamericana Export-Import, S.A. v. Compania Dominicana De Aviacion, 88 F.3d 948, 951 (11th Cir.1996). Although “ ‘good cause’ is not susceptible to a precise formula,” the Eleventh Circuit has set out some factors which may aid the court in its determination. Id. These factors include, but are not limited to, (1) “whether the default was culpable or willful” which entails an assessment of the plausibility of the defaulting party’s excuse; (2) “whether setting [the default] aside would prejudice the adversary,” (3) “whether the defaulting party presents a meritorious defense,” and (4) “whether the defaulting party acted promptly to correct the default.” Id.; Turner Broadcasting Sys., Inc. v. Sanyo Electric, Inc., 33 B.R. 996, 1001 (N.D.Ga.1983), aff'd without op., 742 F.2d 1465 (11th Cir.1984); see also Kelly v. Florida, No. 06-11258, 2007 WL 295419 (11th Cir.2007) (unpublished) (quoting Compania Interamericana, supra, for the proposition that the Eleventh Circuit has established “ ‘some general guidelines,’ ” which although not “ ‘talismanie,’” may guide the court’s Rule 55(c) “good cause” determination). In short, the essence of Rule 55(c) is that an entry of default may be set aside if the party in default demonstrates “good cause,” Fed. R. Civ. 55(c), and, as established in this circuit, the foregoing factors provide a means to assist the court in ascertaining whether such cause exists. See Compania Interamericana, 88 F.3d at 951 (“Whatever factors are employed, the imperative is that they be regarded simply as a means of identifying circumstances which" }, { "docid": "7623353", "title": "", "text": "Bavely stated that he refused to give Powell any advice other than to retain an attorney. Bavely also indicated that he spoke to Stuart Richards regarding his status as Powell’s attorney in November 1996 and December 1996. Bavely indicated that despite his understanding that Richards had not been retained by Powell, he sought Richard’s help in obtaining cooperation from Powell. (Aff. of E. Hanlin Bavely at 3.) The bankruptcy court conducted a hearing on the motion to set aside the default judgment on September 29, 1997. On October 22, 1997, the bankruptcy court entered an order denying the motion to set aside default. The bankruptcy court held that Powell had not raised a meritorious defense to the turnover complaint and that he was culpable for the conduct leading to the default judgment. Powell appealed. IV. DISCUSSION Federal Rule of Civil Procedure 55(e), made applicable in adversary proceedings by Federal Rule of Bankruptcy Procedure 7055, governs a motion to set aside an entry of default or a default, judgment. When a court has entered a default judgment, as here, Rule 55(c) states that the court may set aside that judgment only in accordance with Federal Rule of Civil Procedure 60(b). Rule 60(b). provides: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. 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; (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; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b). In the present" }, { "docid": "710582", "title": "", "text": "Defendant’s proffered excuse for the default is insufficient to warrant setting aside the default judgment on the issue of liability. (Doc. No. 23.) Defendant, thereafter, filed a reply. (Doc. No. 24.) IV. DISCUSSION A motion made pursuant to Rule 55(c) is addressed to the sound discretion of the trial court. See McGrady v. D’Andrea Elec., Inc., 434 F.2d 1000, 1001 (5th Cir.1970). The court’s discretion is tempered by this circuit’s preference for a decision on the merits with full participation by the parties. See Gulf Coast Fans, Inc. v. Midwest Electronics Importers, Inc., 740 F.2d 1499, 1510 (11th Cir.1984). Rule 55(c) of the Federal Rules of Civil Procedure states that “[f]or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Fed.R.Civ.P. 55(c). Rule 60(b), in turn, provides, in pertinent part, that relief from a “final judgment” for “mistake, inadvertence, surprise or excusable neglect” or for “any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(1), (6). “The importance of distinguishing between an entry of default and a default judgment lies in the standard to be applied in determining whether or not to set aside the default.” EEOC v. Mike Smith Pontiac GMC, Inc., 896 F.2d 524, 528 (11th Cir.1990). “The excusable neglect standard that courts apply in setting aside a default judgment is more rigorous than the good cause standard that is utilized in setting aside an entry of default.” Id.; Jones v. Harrell, 858 F.2d 667, 669 (11th Cir.1988). The Eleventh Circuit has expressed that the “good cause” standard is a liberal one. Compania Interamericana Export-Import, S.A. v. Compania Dominicana De Aviacion, 88 F.3d 948, 951 (11th Cir.1996). Although “ ‘good cause’ is not susceptible to a precise formula,” the Eleventh Circuit has set out some factors which may aid the court in its determination. Id. These factors include, but are not limited to, (1) “whether the default was culpable or willful” which entails an assessment of the plausibility of the defaulting party’s excuse;" }, { "docid": "15808967", "title": "", "text": "that test. Although the Court rejects the bulk of Sudan’s motion, the Court will grant Sudan’s motion with respect to the punitive damages award. A. Whether Rule 60 or Rule 55 Applies The parties first dispute whether the Court should consider Sudan’s motion under Federal Rule of Civil Procedure 60(b) or’ Rule 55(c). Plaintiffs argue that the standard under Rule 60(b) for setting aside a final judgment applies, while Sudan contends that Rule 55(c)’s “good cause” standard applies. Under Rule 55(c), a defendant’s default may be set aside -for “good cause.” See Fed. R. Civ. P. 55(c). Although that rule speaks only of a defendant’s default, “even after a judgment is entered ... the rule 55(c) standard should apply unless the default judgment is final and appealable.” Jackson v. Beech, 636 F.2d 831, 836 n. 7 (D.C.Cir.1980). A district court exercising its discretion to set aside an entry of default or a non-final default judgment must consider, and balance: “whether (1) the default was willful, (2) a set-aside would prejudice plaintiff, and (3) the alleged defense [is] meritorious.” Keegel v. Key W. & Caribbean Trading Co., 627 F.2d 372, 373 (D.C.Cir.1980); see Mohamad v. Rajoub, 634 F.3d 604, 606 (D.C.Cir.2011). When determining whether a defendant’s proffered defense is meritorious, the “[l]ikeli-hood of success is not the measure.” Kee-gel, 627 F.2d at 374. Instead, a defendant’s “allegations are meritorious if they contain ‘even a hint of a suggestion’ which, [if] proven at .trial, would constitute a complete defense.” Id. A final default judgment, by contrast, can be set aside only under the more stringent standard of Rule 60(b). See Fed. R. Civ. P.-60(b); Fed. R. Civ. P. 55(c) (“The court ... may set aside a final default judgment under Rule 60(b).”); accord Jackson, 636 F.2d at 835. Rule 60(b) states that a district court “may relieve a party ... from a final judgment” in six identified circumstances, including where there has been “mistake, inadvertence, surprise, or excusable neglect,” where “the judgment is void,” or if the court identifies “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(l)-(6). The standard" }, { "docid": "15939455", "title": "", "text": "judgment. The agreement deems the account in default if the cardholder files for bankruptcy. The agreement also requires the cardholder to pay the costs of collection, including attorney fees at the contractually provided rate of 15 percent of the unpaid balance. In paragraph 35 of the Complaint, Plaintiff stated its intention to collect attorney fees if the Court finds the debt nondischargeable, which Plaintiff indicated that Defendant could avoid if he paid $21,331.87 within 10 days of receiving the Complaint. Defendant failed to answer by the March 6, 2000, deadline. The Clerk entered default, and Plaintiff moved for entry of default judgment on July 7, 2000. The Court scheduled the matter to be tried on September 12, 2000, and on September 6, 2000, Defendant answered. Defendant did not file a motion to open the default with his Answer, but at trial Defendant’s attorney made an oral motion to open default. Defendant’s attorney explained that he had repeatedly attempted to discuss the pending adversary with Defendant, but for various reasons Defendant wanted to avoid the matter. Defendant’s attorney proffered that Plaintiffs adversary caused Defendant psychological distress, and Defendant suffered marital difficulties as a result of his bankruptcy. According to Defendant’s attorney, Defendant coped with these problems by ignoring them. Additionally, Defendant wanted to avoid the loss of wages he would suffer if he took time off from work to discuss Plaintiffs adversary with his counsel. Conclusions of Law 1. Defendant’s Oral Motion to Open the Default The Court will deny Defendant’s oral motion to open the default entered against him on July 7, 2000. Pursuant to Federal Rule of Bankruptcy Procedure 7055, Federal Rule of Civil Procedure 55(c) governs Defendant’s motion. Rule 55(c) provides, “For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Fed.R.Civ.P. 55(c). The more lenient “good cause” standard of Rule 55(c), as opposed to the “excusable neglect” standard of Rule 60(b), will be applied because the Court has not entered default judgment. See In re" }, { "docid": "19852425", "title": "", "text": "judgment may support a finding that reopening would prejudice a creditor. See Hawkins v. Landmark Fin. Co. (In Re Hawkins), 727 F.2d 324, 327 (4th Cir.1984). Further, if the decision not to reopen was bottomed on a finding that the default judgment could not be set aside, such is a permissible basis to deny relief, because reopening in that event would be meaningless. See In Re Danley, 14 B.R. 493, 494 (Bankr.D.N.M.1981). We cannot say that it was an abuse of discretion to deny the motion to reopen. B. Vacating Default Judgment Had the case been reopened, Chalasani would still have needed to meet the standard for setting aside a default judgment. Motions to vacate default judgments, like motions to reopen, are addressed to the broad equitable discretion of the court where the default was taken and, because that court is in the best position to assess the credibility and motives of the moving party, we will not disturb its decision granting or denying relief unless the decision was clearly wrong. Marziliano v. Heckler, 728 F.2d 151, 156 (2d Cir.1984); Davis v. Musler, 713 F.2d 907, 912 (2d Cir.1983). Bankr.R. 7055 makes Fed.R.Civ.P. 55 applicable in adversary proceedings. Rule 55(c) states that “[f]or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Chalasani cannot show good cause; nor can he make out the more rigorous showing required by Rule 60(b). Good cause depends upon such factors as the willfulness of the default, the prejudice the adversary would incur were the default set aside, and the merits of the defense proffered. See Men’s Sportswear, Inc. v. Sasson Jeans, Inc. (In Re Men’s Sportswear, Inc.), 834 F.2d 1134, 1138 (2d Cir.1987). The bankruptcy court found the default willful and that setting it aside would prejudice State Bank. We agree. The debtor’s contention that his default was occasioned by excusable neglect because he was not represented by counsel during discovery is meritless. Cha-lasani’s counsel withdrew in part because of the debtor’s" }, { "docid": "19924854", "title": "", "text": "requires a “clear manifestation by the adverse party.” This language does not lend support to Dr. Beitel’s contention: It neither indicates that only the bankruptcy court may make determinations as to consent nor causes us to question whether Dr. Beitel consented in this case. Dr. Beitel contends alternatively that his post-default conduct is irrelevant. On this point, Dr. Beitel, misinterprets our precedent: A defendant may lose the opportunity to object after a relevant hearing, but a defendant does not possess free license not to object after a hearing. This is particularly true in the default-judgment context, in which a defendant may not have had an opportunity to object previously. To hold otherwise would only create needless appellate litigation by encouraging defendants like Dr. Beitel to wait until appeal to object to the bankruptcy court’s jurisdiction. We agree with the district court’s observation that Dr. Beitel’s objection to the bankruptcy court’s jurisdiction at this stage of the proceeding “more closely resembles an afterthought than a bona fide objection.” The bankruptcy court had both subject-matter jurisdiction over the instant case and authority to enter final orders and judgments. C. Setting Aside the Default Judgment 1. Legal Standard Federal Rule of Civil Procedure 55 applies in adversary proceedings. The former version of Rule 55(c), which applies here, states that “[f|or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Because the bankruptcy court entered a judgment on Dr. Beitel’s default, Rule 60(b) applies. This rule allows a court to grant relief from a final judgment under any of six provisions, including “mistake, inadvertence, surprise, or excusable neglect[.]” In assessing a motion to vacate a default judgment, we have interpreted Rule 60(b)(1) as incorporating the Rule 55 “good-cause” standard applicable to entries of default: In determining whether good cause exists to set aside a default judgment under Rule 60(b)(1) we examine the following factors: whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense" }, { "docid": "16421039", "title": "", "text": "of Defendant. CONCLUSION Although I find that excusable neglect exists to permit Defendant’s filing of its motion to vacate, I will deny the motion because of Defendant’s failure to plead a meritorious defense with specificity. In light of my excusable neglect determina tion and because the Court prefers to avoid default judgments and dispose of cases on the merits, Defendant will be granted leave to file a motion for reconsideration of this ruling. Defendant must file and serve such a motion within sixty (60) days after the entry of this ruling and the motion must be supported by an affidavit alleging, with specificity, Defendant’s alleged meritorious defenses. Absent the filing of such a motion with the affidavit the default judgment will stand. . The Court will cite to the federal rules of procedure as either \"Civil Procedure Rule _” or \"Bankruptcy Rule_”. . Fed. R. Bankr.P. 7055 makes Fed.R.Civ.P. 55 applicable to adversary proceedings under the Bankruptcy Code. Fed.R.Civ.P. 55 states in relevant part: (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). . Fed. R. Bankr.P. 9024 makes certain sections of Fed.R.Civ.P. 60 applicable to cases under the Bankruptcy Code. Fed.R.Civ.P. 60 states in relevant part: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relive a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (mistake, inadvertence, surprise, or excusable neglect;.. .The motion shall be made within a reasonable time, and for reasons (1) .. .not more than one year after the judgment, order, or proceeding was entered or taken.)" }, { "docid": "19924855", "title": "", "text": "the instant case and authority to enter final orders and judgments. C. Setting Aside the Default Judgment 1. Legal Standard Federal Rule of Civil Procedure 55 applies in adversary proceedings. The former version of Rule 55(c), which applies here, states that “[f|or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Because the bankruptcy court entered a judgment on Dr. Beitel’s default, Rule 60(b) applies. This rule allows a court to grant relief from a final judgment under any of six provisions, including “mistake, inadvertence, surprise, or excusable neglect[.]” In assessing a motion to vacate a default judgment, we have interpreted Rule 60(b)(1) as incorporating the Rule 55 “good-cause” standard applicable to entries of default: In determining whether good cause exists to set aside a default judgment under Rule 60(b)(1) we examine the following factors: whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented. Courts may also consider whether the public interest was implicated, whether there was significant financial loss to the defendant, and whether the defendant acted expeditiously to correct the default. The district court need not consider all of the above factors in ruling on a defendant’s 60(b)(1) motion; the imperative is that they be regarded simply as a means of identifying circumstances which warrant the finding of “good cause.” This inquiry follows a recognition in our previous holdings that “courts apply essentially the same standard to motions to set aside a default and a judgment by default.’ Yet, we have also stated that “the former is more readily granted than a motion to set aside a default judgment.” On multiple occasions, we have declined to decide whether the “good-cause standard is equivalent to the standard applied to relief from default judgment under Rule 60(b).” Although the recent revision to Rule 55(c) may one day cause us to reassess the relationship between the Rule 55(c) good-cause standard and Rule 60(b)(1), we have no occasion to" }, { "docid": "18808183", "title": "", "text": "judgment based on an insufficient complaint without first taking those steps necessary to satisfy itself as to the propriety of entry of the judgment. Had debtors moved for dismissal of the complaint under Rule 12(b)(6), the court would have dismissed it unless the FDIC amended it. The FDIC might contend that the debtors have been rewarded for ignoring process rather than responding to it, and have improved their position by bypassing the required showing of excusable neglect required to set aside a default judgment unddr Rule 60(b). This benefit is marginal, and is due in some measure to the pleading errors of the plaintiffs complaint. The FDIC has been granted a default that may not be set aside without a showing of good cause. Bankruptcy Rule 7055; Rule 55(c). The debtors may only move to set aside this default by leave of the court. Rule 55(a)(2). The court is not required to set aside the default and may conduct such hearings as it deems necessary pursuant to Rule 55(b)(2). We do not hold that a default judgment cannot be entered on the FDIC complaint. We hold only that the court must exercise its informed discretion, since the complaint is not pled sufficiently to withstand a motion to dismiss. CONCLUSION The default judgment is VACATED and the matter REMANDED to the bankruptcy court for such further proceedings, pursuant to the order of default, as may be appropriate. . Unless otherwise stated, all references to “Section” are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330. . Unless otherwise stated, all references to \"Rule” are to the Federal Rules of Civil Procedure, 1-71, made applicable by the Bankruptcy Rules. All references to \"Bankruptcy Rule” are to the Federal Rules of Bankruptcy Procedure, 1001-9036." } ]

[ { "docid": "22673875", "title": "", "text": "(discussing the constitutional rights a defendant waives by entering a guilty plea and citing to Parke). Given that the Supreme Court has allowed a defendant to waive constitutional rights, we would be hard-pressed to find a reason to prohibit a defendant from waiving a purely statutory right. Other circuits have adopted a similar rationale for approving the use of these waivers. See, e.g., Teeter, 257 F.3d at 21-22; Khattak, 273 F.3d at 561; United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.1990). We see no rational basis for challenging the general premise that a defendant can enter into a plea agreement that waives appellate rights. We have, however, imposed limits on the use of these waivers and we reaffirm these limits here. When reviewing a purported waiver, we must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily. Even when these conditions are met, however, we will not enforce a waiver where to do so would result in a miscarriage of justice. A. Scope of Waiver Plea agreements are essentially contracts between the defendant and Government. Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir.1994). However, these agreements are subject to special limitations given their unique nature. Significantly, this Court stated in Margalli-Olvera that “[a]pplication of these contract principles is tempered by the constitutional implications of a plea agreement.” Id. Also important was our statement that “[w]here a plea agreement is ambiguous, the ambiguities are construed against the government.” Id. at 353. Interpreting plea agreements in this manner reflects the fact that these agreements are normally drafted by the Government and involve significant rights of a defendant. As such, the burden of proof is on the Government to demonstrate that a plea agreement clearly and unambiguously waives a defendant’s right to appeal. Id. In United States v. Hernandez, the Second Circuit stated that while waivers of appellate rights are generally valid, these waivers “are to be applied ‘narrowly’ and construed ‘strictly against the Government.’ ” 242 F.3d 110, 113 (2001) (internal citation and" } ]

[ { "docid": "18021190", "title": "", "text": "the government never filed a brief in support of ah appeal or otherwise “further prosecute[d] such appeal” as contemplated by § 3742(b). BYE, Circuit Judge, concurring in part and dissenting in part. I concur in the majority’s decision to enforce Jennings’s conviction appeal waiver. With respect to Jennings’s sentencing appeal waiver, however, I believe the government unequivocally exercised its right to appeal, thereby permitting Jennings to cross-appeal his sentence. I therefore respectfully dissent. “We will enforce a defendant’s appeal waiver against all issues that fall within the scope of the waiver if the defendant entered the plea agreement and appeal waiver ‘knowingly and voluntarily’ and enforcement of the waiver would not cause a ‘miscarriage of justice.’ ” United States v. Boroughf, 649 F.3d 887, 890 (8th Cir.2011) (quoting United States v. Scott, 627 F.3d 702, 704 (8th Cir.2010)). “Plea agreements are contractual, in nature and should be interpreted according to general contract principles.” United States v. Snelson, 555 F.3d 681, 685 (8th Cir.2009) (internal quotation marks and citation omitted). “The government bears the burden of establishing that the plea agreement clearly and unambiguously waives the defendant’s right to appeal, and ambiguities in the agreement are construed against the government.” United States v. Azure, 571 F.3d 769, 772 (8th Cir.2009); see also United States v. Andis, 333 F.3d 886, 890 (8th Cir.2003) (en banc) (“Plea agreements will be strictly construed and any ambiguities in these agreements will be read against the Government and in favor of a defendant’s appellate rights.”). Employing these principles here, I find determinative the following exception contained in Jennings’s appeal waiver: [I]f the United States exercises its right to appeal the sentence imposed as authorized by 18 U.S.C. § 3742(b), the defendant is released from this waiver and may, as part of the Government’s appeal, cross-appeal his sentence as authorized by 18 U.S.C. § 3742(a) with respect to any issues that have not been stipulated to or agreed upon in this agreement. Plea Agreement at 12. Following the district court’s denial of $886,650 in restitution, the government filed a notice of appeal. Nonetheless, the government contends it" }, { "docid": "20641379", "title": "", "text": "criminal history” so long as the district court “accepts the plea, accepts the U.S. Sentencing Guidelines Total Offense Level agreed to herein, and, after determining a Sentencing Guidelines range, sentences the Defendant within or below that range.” Binkholder argues that the total offense level contemplated by the plea agreement was either 26 or 28, and because the district court ultimately determined that the total offense level was 31, his waiver cannot be enforced to bar this appeal. We agree. The government has the burden to establish that a given appeal is “clearly and unambiguously” within the scope of an appeal waiver. United States v. McIntosh, 492 F.3d 956, 959 (8th Cir. 2007). Here, the parties agreed that Binkholder should receive a 3-level reduction for acceptance of responsibility, with the government reserving the right to argue against it if it “receives new evidence of statements or conduct by the Defendant which it believes are inconsistent with Defendant’s eligibility for this [reduction.” The parties also agreed that the “Estimated Total Offense Level” was either 26 or 28, and did not include a contingency for the possibility that the reduction for acceptance of responsibility might not apply. Finally Binkholder waived his right to ap peal “in the event the Court ... accepts the U.S. Sentencing Guidelines Total Offense Level agreed to herein.” Reading the agreement as a whole, there are two possible constructions of the term “agreed to herein” in the appeal waiver: Either the total offense level “agreed to herein” includes levels 26 and 28, as well as any adjustments to those levels otherwise permissible under the plea agreement; or it encompasses only the two possible total offense levels that are identified in the agreement and are thus specifically “agreed to herein.” We construe this ambiguity in Binkholder’s favor, United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc), and conclude that because the district court did not apply one of the two total offense levels specifically contemplated by the plea agreement, Binkholder’s appeal waiver does not preclude this appeal. III. Acceptance of Responsibility Binkholder argues that the district" }, { "docid": "23343648", "title": "", "text": "889-90. But, we will not enforce a waiver that results in a “miscarriage of justice.” Id. at 890. The burden of proof is on the government to prove that “a plea agreement clearly and unambiguously waives a defendant’s right to appeal.” Id. Any ambiguities in the agreement are construed against the government. Id. Whether a valid waiver of appellate rights occurred is a question of law that we will review de novo. United States v. Young, 223 F.3d 905, 909 (8th Cir.2000). Sisco argues that the government breached its plea agreement duty not to seek an upward departure. The government counters that Sisco knowingly and voluntarily waived his right to appeal and that he cannot now challenge the sentence imposed unless he establishes that the sentence is illegal or constitutes a miscarriage of justice. To determine whether the waiver is enforceable we first must determine whether Sisco’s appeal falls within the waiver’s scope. If it does, we must then determine whether Sisco knowingly and voluntarily waived his appellate rights. Finally, we must determine whether the resulting sentence imposed would result in a miscarriage of justice. Only if we conclude that Sisco did not waive his right to appeal will we examine Sisco’s argument that the government breached his plea agreement by seeking an enhanced sentence. 1. Scope of Waiver Sisco pleaded guilty pursuant to a written plea agreement to possession with intent to distribute five grams or more of crack cocaine. At sentencing, the district court sentenced Sisco to the statutory maximum of 480 months’ imprisonment, departing upward from the Guidelines range of 168 to 210 months. The district court departed upward based upon the unobjected to facts in the PSR and evidence introduced by the government showing Sisco’s conduct that led to state murder charges while he was released pending sentencing in this case. The court permitted the government to seek an upward departure based upon Sisco’s violation of his plea agreement conditions of release. The court concluded that Sisco’s criminal history was understated and enhanced his sentence to account for his new state criminal charges. Sisco’s appeal waiver" }, { "docid": "23343649", "title": "", "text": "resulting sentence imposed would result in a miscarriage of justice. Only if we conclude that Sisco did not waive his right to appeal will we examine Sisco’s argument that the government breached his plea agreement by seeking an enhanced sentence. 1. Scope of Waiver Sisco pleaded guilty pursuant to a written plea agreement to possession with intent to distribute five grams or more of crack cocaine. At sentencing, the district court sentenced Sisco to the statutory maximum of 480 months’ imprisonment, departing upward from the Guidelines range of 168 to 210 months. The district court departed upward based upon the unobjected to facts in the PSR and evidence introduced by the government showing Sisco’s conduct that led to state murder charges while he was released pending sentencing in this case. The court permitted the government to seek an upward departure based upon Sisco’s violation of his plea agreement conditions of release. The court concluded that Sisco’s criminal history was understated and enhanced his sentence to account for his new state criminal charges. Sisco’s appeal waiver is broad and specifically states that Sisco “expressly waives his right to appeal his sentence, directly or collaterally, on any ground except a sentence imposed in excess of the statutory maximum or an illegal sentence, that is, sentencing error more serious than a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence.” The sentence imposed, while lengthy, does not exceed the statutory maximum for the crime of conviction. Nor is the sentence imposed an illegal sentence. We have repeatedly held that, in the face of a valid appeal waiver, any sentence within the statutory range is not subject to appeal. Andis, 333 F.3d at 892; United States v. Benitez-Diaz, 337 F.3d 1080, 1082 (8th Cir.2003). Sisco’s argument on appeal that the district court erred in departing upward from the Guidelines is not a ground excepted by the plea agreement. Sisco’s appeal falls within the scope of the waiver. 2. Knowingly and Voluntarily We have held that for a plea agreement to be valid, the defendant must enter into" }, { "docid": "5267990", "title": "", "text": "the government. The agreement set forth stipulations about the relevant facts and the application of the advisory sentencing guidelines. The agreement also included an appeal waiver. At Cheney’s sentencing hearing in February 2008, the district court calculated an advisory guideline range of 240 to 262 months’ imprisonment, and noted that the offense carried a statutory minimum penalty of 240 months. The government made substantial-assistance motions pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e), recommending that the court reduce Cheney’s sentence by fifteen percent. After discussing the possibility of an upward departure based on Cheney’s criminal history (which the court ultimately did not implement) and finding that Cheney was untruthful in his testimony at a sentencing hearing in another case, the court granted the substantial-assistance motions and reduced Cheney’s sentence by only ten percent, to 216 months’ imprisonment. On appeal, Cheney argues that the district court abused its discretion by failing to reduce the sentence further. He also argues that the district court erred by sua sponte, and without notice, considering whether Cheney’s criminal history was underrepresented by the advisory guidelines and whether Cheney had testified truthfully at the other sentencing proceeding. The government contends that Cheney’s arguments are foreclosed by his waiver of appeal rights contained in his sentencing agreement. Our cases have not addressed the interpretation and enforcement of sentencing agreements, but they are similar to plea agreements, and our precedents relating to the waiver of appeal rights in plea agreements provide useful guidance. See United States v. Ross, 245 F.3d 577, 582 (6th Cir.2001); United States v. Bradstreet, 207 F.3d 76, 80 n. 2 (1st Cir.2000). We will enforce the waiver of rights to appeal when the government establishes that the issues raised on appeal are “within the scope of the waiver,” the waiver was entered into “knowingly and voluntarily,” and enforcement of the waiver “would not result in a miscarriage of justice.” United States v. McIntosh, 492 F.3d 956, 959 (8th Cir.2007). Cheney’s sentencing agreement contains a paragraph entitled “Appeal Waiver,” which states that “[a]fter conferring with his attorney and after being advised of his" }, { "docid": "5267991", "title": "", "text": "history was underrepresented by the advisory guidelines and whether Cheney had testified truthfully at the other sentencing proceeding. The government contends that Cheney’s arguments are foreclosed by his waiver of appeal rights contained in his sentencing agreement. Our cases have not addressed the interpretation and enforcement of sentencing agreements, but they are similar to plea agreements, and our precedents relating to the waiver of appeal rights in plea agreements provide useful guidance. See United States v. Ross, 245 F.3d 577, 582 (6th Cir.2001); United States v. Bradstreet, 207 F.3d 76, 80 n. 2 (1st Cir.2000). We will enforce the waiver of rights to appeal when the government establishes that the issues raised on appeal are “within the scope of the waiver,” the waiver was entered into “knowingly and voluntarily,” and enforcement of the waiver “would not result in a miscarriage of justice.” United States v. McIntosh, 492 F.3d 956, 959 (8th Cir.2007). Cheney’s sentencing agreement contains a paragraph entitled “Appeal Waiver,” which states that “[a]fter conferring with his attorney and after being advised of his appeal rights, the defendant knowingly and voluntarily waives his right to appeal his conviction and the sentence imposed.” Under the agreement, however, Cheney retained the right to appeal his sentence “(1) if the sentence is not in accordance with this sentencing agreement; (2) if the sentence imposed exceeds the maximum statutory penalty; [or] (3) if the sentence is unconstitutionally defective.” He also retained the right to raise claims of ineffective assistance of counsel, which are typically considered in a collateral proceeding. None of the issues that Cheney seeks to raise falls within any of these limited exceptions to his appeal waiver. Cheney’s appeal is thus within the scope of his waiver. We are also satisfied that Cheney’s waiver was knowing and voluntary. Cheney makes no argument on appeal that the waiver is invalid, and the record supports its validity. At the time of the agreement, Cheney was a 47-year-old high school graduate with a twenty-year employment record, no history of mental health problems, and experience with the criminal justice system. The waiver was contained in" }, { "docid": "17084128", "title": "", "text": "court imposed a substantively unreasonable sentence. The government contends in opposition that Boneshirt waived his right to appeal the substantive reasonableness of his sentence in his written plea agreement. A. Waiver of Right To Appeal The government argues that this court should dismiss Boneshirt’s appeal because it is barred by the appellate rights waiver in his written plea agreement. The government contends that his appeal falls within the scope of the waiver, which only preserved his right to appeal “a traditional Guideline departure or an upward variance.” Although it acknowledges that, at the plea hearing, the district court did not specifically ask Boneshirt about the waiver of his right to appeal, the government asserts that the record demonstrates that he knowingly and voluntarily entered into the plea agreement, citing United States v. Michelsen, 141 F.3d 867, 871-72 (8th Cir. 1998) (concluding that a dialogue about the appeal waiver was “not a prerequisite for a valid waiver of the right to appeal”), and United States v. Cheney, 571 F.3d 764, 767 (8th Cir.2009) (enforcing an appeal waiver in a post-plea sentencing agreement despite the lack of a colloquy about the waiver). Finally, the government maintains that enforcing the waiver would not result in a miscarriage of justice. Boneshirt contends that he may maintain his appeal despite the waiver because the district court failed to engage in the colloquy required by Federal Rule of Criminal Procedure ll(b)(l)(N). Under this court’s precedent, Boneshirt maintains, the waiver of appellate rights cannot be enforced when the district court does not discuss the waiver with the defendant prior to accepting his plea. See United States v. Laney, 261 Fed.Appx. 913, 913 (8th Cir.2008) (unpublished per curiam); United States v. Fugate, 158 Fed.Appx. 748, 749 (8th Cir.2005) (unpublished per curiam); United States v. Rojas-Coria, 401 F.3d 871, 872 n. 2 (8th Cir.2005). “Whether a valid waiver of appellate rights occurred is a question of law that we will review de novo.” United States v. Sisco, 576 F.3d 791, 795 (8th Cir.2009). “The government bears the burden of proving that the defendant’s appeal is barred by the waiver.”" }, { "docid": "21389746", "title": "", "text": "188 months of imprisonment or an advisory Guidelines range of 63 to 78 months, depending on whether or not the district court ultimately determined that Williams was a career offender. Despite the factual dispute over his career offender status, Williams agreed in Paragraph 9 to waive his right to appeal any sentence not exceeding 151 months, and his 72-month sentence is clearly within the scope of that agreement. See United States v. Andis, 333 F.3d 886, 890 (8th Cir.) (en banc) (noting Government has the burden “to demonstrate that a plea agreement clearly and unambiguously waives a defendant’s right to appeal”), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398. Williams does not assert on appeal that his plea was involuntarily or unknowingly entered, and in any event, such a claim would not be cognizable on direct appeal where he failed to present it to the district court in the first instance by a motion to withdraw his guilty plea. United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990). We therefore enforce the appeal waiver and dismiss Williams’s appeal. III. Washington Washington’s plea agreement contains no appeal waiver. In the agreement, Washington stipulated that he was subject to a Guidelines offense level of 19 and a criminal history category of III, resulting in an advisory Guidelines sentencing range of 37 to 46 months. The Government argued that a sentence above the advisory Guidelines range was necessary because the range did not adequately take into consideration the fact that Washington had committed the instant bank robbery only a few months following his release from prison on a 78-month sentence for a prior armed bank robbery conviction. The Government moved for an upward departure pursuant to USSG § 4A1.3 (Inadequacy of Criminal History Category), § 5H1.9 (Dependence upon Criminal Activity for a Livelihood), and § 5K2.0 (Other Grounds for Departure), or a post-Booker upward variance pursuant to the factors articulated in 18 U.S.C. § 3553(a). The district court agreed with the stipulated Guidelines calculations but, without clearly identifying whether it was granting a Guidelines-based departure or a post-Booker variance" }, { "docid": "23343652", "title": "", "text": "“Yes, sir.” Sisco stated that no one had forced him to enter the agreement. Finally, the district court emphasized to Sisco that the plea agreement included a waiver of Sisco’s right to appeal for a finding of guilt and his right to appeal his sentence. Sisco acknowledged understanding these consequences. Based on this colloquy, we hold that Sisco knowingly and voluntarily entered into the plea agreement. 3. Miscarriage of Justice We will not enforce an “otherwise valid waiver if to do so would result in a miscarriage of justice.” Id. Because waivers are contractual agreements between the government and the defendant, we will not lightly void these agreements. Id. Therefore, the “miscarriage of justice” exception is a narrow one that may arise in only limited contexts. Id. at 891-92. For example, we have held that a defendant may appeal an illegal sentence despite a valid waiver. Id. at 891-92. A sentence is illegal where it exceeds the statutory maximum. Id. at 992 (citing United States v. Greatwalker, 285 F.3d 727, 729 (8th Cir.2002)). But “[a]ny sentence imposed within the statutory range is not subject to appeal.” Id. at 892. Any appeal challenging a statutory sentence “should be summarily dismissed based on [the] waiver.” Id. at 893. Sisco does not argue that the sentence is illegal because it exceeds the statutory maximum. Rather, Sisco argues that the sentence is unreasonable based upon an alleged Guidelines departure error committed by the district court in arriving at the statutory maximum. The record shows that the court accepted the PSR factual allegations and the evidence introduced by the government to show that Sisco had engaged in conduct that violated his release conditions and his plea agreement. In assessing criminal history, the sentencing judge may take into account charged offenses as well as convictions. U.S.S.G. § 4A1.3(a)(2)(D) (stating that information forming the basis for upward departure may include “[w]hether the defendant was pending trial or sentencing on another charge at the time of the instant offense.”); see also United States v. Collins, 104 F.3d 143, 145 (8th Cir.1997) (holding that “[uncharged conduct can properly be" }, { "docid": "23343647", "title": "", "text": "Discussion Sisco argues on appeal that the district court erred in sentencing him to 480 months’ imprisonment contrary to the agreed term stated in his plea agreement. Sisco contends that the court should not have enhanced his sentence “based merely on charged misconduct for which there had been no trial or other adjudication of guilt.” The government responds that the appeal waiver in Sisco’s plea agreement is valid and should be enforced. We agree and hold that Sisco’s plea agreement and waiver are valid and, therefore, preclude any review on the merits. A. Plea Agreement and Waiver of Appellate Rights A plea agreement is essentially a contract between the government and the defendant. United States v. Andis, 333 F.3d 886, 890 (8th Cir.2003). A defendant may waive his appellate rights pursuant to that agreement. Id. at 889. We have held that “[w]hen reviewing a purported waiver, we must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily.” Id. at 889-90. But, we will not enforce a waiver that results in a “miscarriage of justice.” Id. at 890. The burden of proof is on the government to prove that “a plea agreement clearly and unambiguously waives a defendant’s right to appeal.” Id. Any ambiguities in the agreement are construed against the government. Id. Whether a valid waiver of appellate rights occurred is a question of law that we will review de novo. United States v. Young, 223 F.3d 905, 909 (8th Cir.2000). Sisco argues that the government breached its plea agreement duty not to seek an upward departure. The government counters that Sisco knowingly and voluntarily waived his right to appeal and that he cannot now challenge the sentence imposed unless he establishes that the sentence is illegal or constitutes a miscarriage of justice. To determine whether the waiver is enforceable we first must determine whether Sisco’s appeal falls within the waiver’s scope. If it does, we must then determine whether Sisco knowingly and voluntarily waived his appellate rights. Finally, we must determine whether the" }, { "docid": "8565704", "title": "", "text": "11 and Rule 32 violations. A waiver of appeal is enforceable “if it is valid and the defendant’s claim lies within its scope.” United States v. Padilla-Colón, 578 F.3d 23, 28 (1st Cir.2009). For a waiver to be valid, the defendant must have entered into it knowingly and voluntarily. United States v. Teeter, 257 F.3d 14, 24-25 (1st Cir.2001). To determine whether a defendant’s claim falls within the scope of an otherwise valid waiver, we examine what the parties agreed to, interpreting the agreement under basic contract principles. United States v. Acosta-Roman, 549 F.3d 1, 3 (1st Cir.2008). We construe any ambiguities in the waiver of appeal provision in favor of allowing the appeal to proceed. United States v. Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir.2010). In this case, Ortiz agreed to waive his right to appeal the district court’s judgment and sentence if the court: (1) accepted the agreement; and (2) sentenced Ortiz according to the agreement’s terms and conditions. Those terms and conditions included a recommended sentence of 120 months and a provision confirming that the district court had sound discretion to impose “any sentence within the statutory maximum set for the offense to which the defendant pleads guilty.” Nowhere in the agreement, however, did the government specify the maximum penalty, which was life imprisonment. The agreement merely listed the statutory minimum of “imprisonment of not less than ten (10) years.” The government argues that Ortiz’s waiver of appeal is enforceable because the district court, at the change-of-plea hearing, ensured that Ortiz had knowingly and voluntarily entered into the waiver and then accepted Ortiz’s plea of guilty, which the government equates with having accepted the plea agreement itself. The government further contends that Ortiz’s 360-month sentence falls within the scope of what Ortiz consented to in the plea agreement, which only promised that the government would recommend a sentence of 120 months. To determine whether a defendant entered into a waiver of appellate rights knowingly and voluntarily, we examine the text of the plea agreement and the content of the change-of-plea colloquy. Teeter, 257 F.3d at 24. We" }, { "docid": "20641378", "title": "", "text": "would receive a 3-level reduction for acceptance of responsibility, although the government reserved the right to challenge that reduction at sentencing based on any new information received after the taking of Binkholder’s guilty plea. At sentencing on May 15, 2015, the district court determined that M.U. was a victim for purposes of sentencing, denied a reduction for acceptance of responsibility, and calculated a total offense level of 31. With a criminal history category of I, Binkholder’s advisory Sentencing Guidelines range was 108-135 ■ months’ imprisonment. The district court ultimately sentenced Binkholder to 108 months’ imprisonment followed by 3 years of supervised release, and ordered him to pay $3,655,968.89 in restitution. Binkholder appeals, challenging four aspects of his sentencing. II. Appeal Waiver As an initial matter, we must consider whether Binkholder’s appeal waiver precludes this appeal. See United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010) (we review the “validity and applicability” of an appeal waiver de novo). In his written plea agreement, Binkholder waived “all rights to appeal all sentencing issues other than criminal history” so long as the district court “accepts the plea, accepts the U.S. Sentencing Guidelines Total Offense Level agreed to herein, and, after determining a Sentencing Guidelines range, sentences the Defendant within or below that range.” Binkholder argues that the total offense level contemplated by the plea agreement was either 26 or 28, and because the district court ultimately determined that the total offense level was 31, his waiver cannot be enforced to bar this appeal. We agree. The government has the burden to establish that a given appeal is “clearly and unambiguously” within the scope of an appeal waiver. United States v. McIntosh, 492 F.3d 956, 959 (8th Cir. 2007). Here, the parties agreed that Binkholder should receive a 3-level reduction for acceptance of responsibility, with the government reserving the right to argue against it if it “receives new evidence of statements or conduct by the Defendant which it believes are inconsistent with Defendant’s eligibility for this [reduction.” The parties also agreed that the “Estimated Total Offense Level” was either 26 or 28," }, { "docid": "23343646", "title": "", "text": "had concluded that Sisco’s Guidelines range was 121 to 151 months. After the Missouri charges, a revised PSR concluded that Sisco should not receive a three-level reduction for acceptance of responsibility and set his Guidelines range from 168 to 210 months. The government also filed notice that if the court found that Sisco breached his plea agreement, the government would seek an upward departure based on U.S.S.G. §§ 4A1.3 (“Departures Based on Inadequacy of Criminal History Category”) and 5K2.0(a)(2) (Departures Based on Circumstances of a Kind Not Adequately Taken into Consideration). At sentencing, Sisco did not oppose the government’s motion to withdraw from the plea agreement. The government then filed a motion for an upward departure. The government entered into evidence the surveillance videotapes that showed Sisco and his brother at the bar shooting the unarmed victim eight times. Based on this evidence, the district court granted the government’s motion to depart upward based upon an understated criminal history and sentenced Sisco to the maximum term of 480 months’ imprisonment for the narcotics charges. II. Discussion Sisco argues on appeal that the district court erred in sentencing him to 480 months’ imprisonment contrary to the agreed term stated in his plea agreement. Sisco contends that the court should not have enhanced his sentence “based merely on charged misconduct for which there had been no trial or other adjudication of guilt.” The government responds that the appeal waiver in Sisco’s plea agreement is valid and should be enforced. We agree and hold that Sisco’s plea agreement and waiver are valid and, therefore, preclude any review on the merits. A. Plea Agreement and Waiver of Appellate Rights A plea agreement is essentially a contract between the government and the defendant. United States v. Andis, 333 F.3d 886, 890 (8th Cir.2003). A defendant may waive his appellate rights pursuant to that agreement. Id. at 889. We have held that “[w]hen reviewing a purported waiver, we must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily.” Id. at" }, { "docid": "22739065", "title": "", "text": "a sentence imposed in excess of the statutory maximum or an illegal sentence, that is, sentencing error more serious than a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence. This court reviews de novo the validity and applicability of Scott’s appeal waiver. United States v. Sisco, 576 F.3d 791, 795 (8th Cir.2009). An appeal waiver requires dismissal of an appeal if the plea agreement and waiver were entered into knowingly and voluntarily, if the appeal falls within the scope of the waiver, and if dismissal of the appeal would not result in a miscarriage of justice. United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.2003) (en banc). Scott does not allege that he entered into either the plea agreement or the appeal waiver unknowingly or involuntarily, and nothing in the record suggests that he did so. To the contrary, the magistrate judge questioned Scott about his understanding of the appeal waiver before the plea agreement was accepted, and Scott stated he understood he was giving up his right to appeal his sentence. Scott therefore voluntarily and knowingly entered into the plea agreement and appeal waiver. Further, Scott’s first two claims — that the district court erred by denying his motion to continue sentencing and by failing to consider the crack-powder disparity as a factor in sentencing — fall within the scope of the appeal waiver, which expressly prohibits claims that the district court abused its discretion or misapplied the Sentencing Guidelines. Finally, dismissing these claims would not result in a miscarriage of justice. Id. at 892 (explaining that the dismissal of “an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretion” does not constitute a miscarriage of justice). Scott’s first two claims must therefore be dismissed. Scott’s due process claim, however, is an allegation that his sentence is illegal, which is expressly permitted by the appeal waiver. But to challenge the constitutionality of the mandatory minimum sentence contained in section 841(b)(l)(B)(iii), Scott must have standing. See United States v. Gray, 577 F.3d 947, 950-51 (8th" }, { "docid": "23419234", "title": "", "text": "more persons. The Government counters that McIntosh waived the right to appeal these issues in his plea agreement, but that even if the waiver does not apply, the district court did not err in any of its challenged sentencing determinations. “The ‘general rule’ is that ‘a defendant is allowed to waive appellate rights,’ including those involving the sentence imposed.” United States v. Aronja-Inda, 422 F.3d 734, 737 (8th Cir.2005) (quoting United States v. Andis, 333 F.3d 886, 889 (8th Cir.) (en banc), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003)), cert. denied, 546 U.S. 1124, 126 S.Ct. 1104, 163 L.Ed.2d 916 (2006). When we review a waiver, we must make two determinations: that the issue falls within the scope of the waiver and that both the plea agreement and the waiver were entered into knowingly and voluntarily. Id. Even if both of these determinations are decided in the affirmative, we will not enforce a plea agreement waiver if enforcement would cause a miscarriage of justice. Id. The burden is on the Government to “establish: (1) that the appeal is [clearly and unambiguously] within the scope of the waiver, (2) that the defendant entered into the waiver knowingly and voluntarily, and (3) that dismissing the appeal based on the defendant’s waiver would not result in a miscarriage of justice.” Id. McIntosh’s plea agreement included a section involving waiver of post-conviction rights, including sentencing issues. The waiver specifically stated that if the district court accepted the plea and if the district court, when determining McIntosh’s sentence (1) applied the sentencing recommendations that the parties agreed to and, (2) “after determining a Sentencing Guidelines range, sentence® the defendant within that range,” McIntosh “waive®- all rights to appeal all sentencing issues, including any issues relating to the determination of the Total Offense Level.” (D. Ct. R. at 15-16; Plea Agreement at 3-4.) Significantly, the appeal waiver did not restrict its applicability only to a sentence based on the agreed upon recommendations. We determine that the appeal waiver included in the plea agreement encompasses all three issues McIntosh raises on appeal." }, { "docid": "19922842", "title": "", "text": "PER CURIAM. Defendant Gregory A. Novosel pled guilty to one count of conspiracy to manufacture and possess more than 100 marijuana plants in violation of 21 U.S.C. §§ 841 and 846, and one count of aiding and abetting the use of a firearm during and in relation to and in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924. He did so pursuant to a plea agreement that included a waiver of his right to appeal. Novosel filed a notice of appeal and the government has now moved to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam). We grant the motion and dismiss the appeal. Under the terms of the plea agreement accepted by the district court, Novosel “knowingly and voluntary waive[d] any right to appeal or collaterally attack any matter in connection with [his] prosecution, conviction or sentence.” Plea Agreement at 7 (filed Oct. 18, 2005). More specifically, he waived “any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court.” Id. The district court sentenced Novosel to sixty months’ imprisonment on each count, to be served consecutively. This sentence was at the statutory mandatory minimum of not less than five years’ imprisonment for each count. No-vosel states in his docketing statement that he seeks to raise on appeal three ineffective assistance of counsel claims, two claims of sentencing error, and a claim that he did not knowingly and voluntarily enter into the plea agreement. In Hahn, this court held that a waiver of appellate rights will be enforced if (1) “the disputed appeal falls within the scope of the waiver of appellate rights;” (2) “the defendant knowingly and voluntarily waived his appellate rights;” and (3) “enforcing the waiver would [not] result in a miscarriage of justice.” 359 F.3d at 1325. The miscarriage-of-justice prong requires the defendant to show (a) his sentence relied on an impermissible factor such as race; (b) ineffective assistance of counsel in connection with the negotiation of the appeal waiver rendered the waiver invalid;" }, { "docid": "22739064", "title": "", "text": "minimum sentence of 60 months imprisonment under section 841(b)(l)(B)(iii). Scott argued, however, that the mandatory minimum sentence required by section 841(b)(l)(B)(iii) was unconstitutional because it violated the Due Process Clause of the Fifth Amendment. The district court denied the due process challenge and sentenced Scott to 70 months imprisonment. II. On appeal, Scott claims the district court committed three errors during sentencing. First, Scott argues the district court abused its discretion by denying his motion to continue sentencing. Second, he claims the district court incorrectly believed it could not consider the crack-powder disparity as a factor in sentencing. Third, Scott contends that the district court erred in denying his due process claim that the statutory mandatory minimum sentence required by section 841(b)(l)(B)(iii) is unconstitutional. But before we address the merits of Scott’s arguments on appeal, we must first determine whether he waived his right to appeal in the plea agreement. The relevant section of Scott’s plea agreement states: The defendant expressly waives his right to appeal his sentence, directly or collaterally, on any ground except a sentence imposed in excess of the statutory maximum or an illegal sentence, that is, sentencing error more serious than a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence. This court reviews de novo the validity and applicability of Scott’s appeal waiver. United States v. Sisco, 576 F.3d 791, 795 (8th Cir.2009). An appeal waiver requires dismissal of an appeal if the plea agreement and waiver were entered into knowingly and voluntarily, if the appeal falls within the scope of the waiver, and if dismissal of the appeal would not result in a miscarriage of justice. United States v. Andis, 333 F.3d 886, 889-92 (8th Cir.2003) (en banc). Scott does not allege that he entered into either the plea agreement or the appeal waiver unknowingly or involuntarily, and nothing in the record suggests that he did so. To the contrary, the magistrate judge questioned Scott about his understanding of the appeal waiver before the plea agreement was accepted, and Scott stated he understood he was giving up" }, { "docid": "8598360", "title": "", "text": "ownership and operation of Pharmacom. Therefore, we reject Birbragher’s vagueness challenge. III. Birbragher next challenges his sentence, asserting that the district court erred by giving undue weight to the government’s § 5K1.1 substantial assistance downward departure recommendation. Specifically, Birbragher asserts that the court incorrectly believed, as a result of the plea agreement, that it was required to follow the government’s reasoning for its “low request,” a 5-10 percent reduction. (Appellant Br. 32.) The government responds that the appeal waiver contained in Birbragher’s signed plea agreement warrants dismissal of this portion of the appeal. “Whether a valid waiver of appellate rights occurred is a question of law that we will review de novo.” United States v. Sisco, 576 F.3d 791, 795 (8th Cir.2009). “A plea agreement is essentially a contract between the government and the defendant. A defendant may waive his appellate rights pursuant to that agreement.” Id. (citation omitted). [W]hen reviewing a purported waiver, we must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily. But, we will not enforce a waiver that results in a miscarriage of justice. The burden of proof is on the government to prove that a plea agreement clearly and unambiguously waives a defendant’s right to appeal. Any ambiguities in the agreement are construed against the government. Id. (quotations and citations omitted). Birbragher entered into a plea agreement containing the following provision: APPEAL WAIVER After conferring with his attorney and after being advised of his appeal rights, the defendant knowingly and voluntarily waives his right to appeal his conviction and the sentence imposed (except as expressly reserved in paragraph 1 of this agreement). The defendant also waives his right to file post-conviction relief actions, including actions pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C §§ 2255 and 2241, coram nobis actions and motions to reconsider or reduce his sentence. The defendant retains his right to appeal or contest his sentence in the following limited circumstances: (1) if the sentence is not in accordance with this plea agreement; (2)" }, { "docid": "7908075", "title": "", "text": "did not abuse its discretion in sentencing Lance to life imprisonment. 2. Miller’s Sentence Miller argues that the district court abused its discretion in running 60 months of the 210-month sentence for his conviction on Count Six (obstructing an official proceeding) consecutively to the 240-month sentence he received for his conviction on Count One (conspiring to possess with intent to distribute crack). Under the Sentencing Guidelines, Miller’s total offense level was 32, his criminal history category was TV, and the advisory Guideline range was 168 to 210 months. His conviction on Count One and the Government’s filing of a 21 U.S.C. § 851 prior felony information, however, increased his mandatory sentence to 240 months. By imposing a 300-month sentence, the district court departed not only from the Guidelines, but also from Probation’s recommendation of 240 months. A district court has discretion under 18 U.S.C. § 3584(b) to run sentences consecutively or concurrently in accordance with the § 3553(a) factors. During Miller’s sentencing hearing, the district court stated that one of the reasons for his departure was that Miller’s two co-defendants each received life sentences. We are satisfied upon reviewing Miller’s sentencing hearing that the district court took the § 3553(a) factors into account in determining his sentence. Moreover, avoiding unwarranted sentencing disparities among co-defendants is a valid sentencing consideration. See United States v. McElwee, 646 F.3d 328, 345 (5th Cir.2011). Thus, Miller’s sentence was not substantively unreasonable, and the district court did not abuse its discretion in running 60 months of Miller’s sentence on Count Six consecutively to his 240-month sentence on Count One. III. CONCLUSION For the foregoing reasons, Defendants’ convictions and sentences are AFFIRMED. . The original indictment, filed on June 18, 2009, charged Dalton with possession and intent to distribute crack, possession of a firearm in furtherance of crack possession and distribution, and possession of a firearm by a felon. . Prior to trial, Williams and Knockum entered into plea agreements with the Government and both testified for the Government at trial. . Justice Thomas, concurring in McCollum, stated his belief that this remained an open question:" }, { "docid": "23419233", "title": "", "text": "or participants, USSG § 3Bl.l(a). McIntosh was then granted a three-level reduction in his offense level for acceptance of responsibility. USSG § 3E1.1(a), (b). This established an adjusted offense level of 17, which, when combined with McIntosh’s category VI criminal history, produced an advisory Guidelines range of 51 to 63 months of imprisonment. The district court sentenced McIntosh to 63 months on the device count and imposed the required consecutive sentence of 24 months on the aggravated identity theft count—resulting in a total sentence of 87 months of imprisonment. II. McIntosh’s arguments on appeal pertain to the calculation of his total offense level based upon the three enhancements the district court assessed at sentencing. Specifically, he contends the district court erred in determining that the amount of loss was between $70,000 and $120,000, that the district court erred in finding that the number of victims was more than ten but less than fifty, and that the district court erred in determining that McIntosh was a leader or organizer of a criminal activity involving five or more persons. The Government counters that McIntosh waived the right to appeal these issues in his plea agreement, but that even if the waiver does not apply, the district court did not err in any of its challenged sentencing determinations. “The ‘general rule’ is that ‘a defendant is allowed to waive appellate rights,’ including those involving the sentence imposed.” United States v. Aronja-Inda, 422 F.3d 734, 737 (8th Cir.2005) (quoting United States v. Andis, 333 F.3d 886, 889 (8th Cir.) (en banc), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003)), cert. denied, 546 U.S. 1124, 126 S.Ct. 1104, 163 L.Ed.2d 916 (2006). When we review a waiver, we must make two determinations: that the issue falls within the scope of the waiver and that both the plea agreement and the waiver were entered into knowingly and voluntarily. Id. Even if both of these determinations are decided in the affirmative, we will not enforce a plea agreement waiver if enforcement would cause a miscarriage of justice. Id. The burden is on the" } ]

[ { "docid": "22650200", "title": "", "text": "Watson agreed “to give up my right to appeal my conviction(s), the judgment, and orders of the Court” and “to waive any right I may have to appeal any aspect of my sentence.” (emphases added). Watson promised not to “file any collateral attack on my conviction(s) or sentence” except for an ineffective assistance of counsel claim. Watson further “agree[d] that a reasonable and appropriate disposition of this case, under the Sentencing Guidelines and 18 U.S.C. § 3553(a),” would include “3 years of supervised release (with conditions to be fixed by the Court).” (emphasis added). In Joyce, our court addressed a similar plea agreement that recited “I ... knowingly and voluntarily agree to waive my right under 18 U.S.C. § 3742 to appeal any aspect of the sentence imposed in this case, if the court imposes a sentence within the parameters of this agreement.” 357 F.3d at 923. We determined that the reference to “any aspect of the sentence” unambiguously encompassed supervised release terms. Id. at 923-24; see also United States v. Goodson, 544 F.3d 529, 538 (3d Cir.2008) (“By waiving his right to take a direct appeal of his sentence, [defendant] waived his right to challenge the conditions of his supervised release, which were by definition a part of his sentence.”). Watson’s agreement to forego the right to appeal “any aspect of my sentence” similarly covers supervised release conditions. See Joyce, 357 F.3d at 923-24; see also 18 U.S.C. § 3583(a) (empowering the court to impose supervised release terms “as a part of the sentence”). While Watson’s plea agreement does not specifically mention 18 U.S.C. § 3742, “the only source of any right to appeal the sentence,” Joyce, 357 F.3d at 923, he did promise to waive “any right” to appeal “any aspect” of his sentence, which necessarily encompasses appeals brought under 18 U.S.C. § 3742. The record shows that Watson waived his appellate rights knowingly and voluntarily. In addition to the written terms of the plea agreement itself, the district court “reviewed the charges and each of the terms of the plea agreement and asked [Watson] questions to ensure" } ]

[ { "docid": "22650201", "title": "", "text": "538 (3d Cir.2008) (“By waiving his right to take a direct appeal of his sentence, [defendant] waived his right to challenge the conditions of his supervised release, which were by definition a part of his sentence.”). Watson’s agreement to forego the right to appeal “any aspect of my sentence” similarly covers supervised release conditions. See Joyce, 357 F.3d at 923-24; see also 18 U.S.C. § 3583(a) (empowering the court to impose supervised release terms “as a part of the sentence”). While Watson’s plea agreement does not specifically mention 18 U.S.C. § 3742, “the only source of any right to appeal the sentence,” Joyce, 357 F.3d at 923, he did promise to waive “any right” to appeal “any aspect” of his sentence, which necessarily encompasses appeals brought under 18 U.S.C. § 3742. The record shows that Watson waived his appellate rights knowingly and voluntarily. In addition to the written terms of the plea agreement itself, the district court “reviewed the charges and each of the terms of the plea agreement and asked [Watson] questions to ensure that he understood the contents of his plea agreement.” Baramdyka, 95 F.3d at 844. In particular, the court explained that supervised release means “After you come out of prison, you don’t just get to go free. Again, you’ve got to report and live under certain strict conditions. That’s supervised release. Okay?” to which Watson responded, Wes.” With respect to the appellate waiver, the court reiterated that “if I sentence you in accordance with this agreement or — doesn’t really matter, as long as I wind up sentencing you and you don’t withdraw from this agreement, you’re giving up your right to take an appeal.” Watson signaled that he understood this. The court summed up the waiver again, explaining “So, basically, if I go along with your agreement here and sentence you ultimately to the six years, so forth, you are stuck with it, you have no appeals, and just be sitting in prison for the next six years less time served.” then asked, “Do you understand?” (emphases added). Watson answered, ‘Tes.” “This court has held" }, { "docid": "22129758", "title": "", "text": "a condition of supervised release, Goodson’s waiver bars his challenge. In United States v. Joyce, the Ninth Circuit considered this same issue. It reasoned: Despite the dual meaning of “sentence” in common usage, the statute that provides the only source of Joyce’s right to appeal is crystal clear. Under 18 U.S.C. § 3742(a)(3), a “sentence” can include fines, periods of imprisonment, and supervised release, and mandatory and special conditions of supervised release. That is the only statutory basis upon which Joyce may invoke the jurisdiction of this court to challenge any aspect of the sentence imposed, including an attack on specific conditions of his supervised release. 357 F.3d 921, 924 (9th Cir.2004). The Tenth Circuit agreed with this rationale in United States v. Sandoval, 477 F.3d 1204 (10th Cir.2007), concluding that “[sjupervised-release conditions are part of the sentence: and the reference to 18 U.S.C. § 3742 (the statutory basis for sentence appeals) in ¶ 10 of the plea agreement makes clear that the waiver encompasses all appellate challenges to the sentence other than those falling within the explicit exception for challenges to upward departures.” Id. at 1207 (citing Joyce, 357 F.3d at 922-24). See also United States v. Andis, 333 F.3d 886, 892 n. 7 (8th Cir.2003) (noting that waiver of “all rights to appeal whatever sentence is imposed” included that “portion of sentence which involved the imposition of a term of supervised release and its conditions”); United States v. Sines, 303 F.3d 793, 798-99 n. 3 (7th Cir.2002) (finding that waiver of right to appeal any portion of his sentence that was within the guideline range constituted a waiver of Sines’s right to appeal the “terms of his supervised release”). Accordingly, we hold that Goodson’s waiver of his right to appeal his sentence under § 3742 encompassed his right to appeal the conditions of his supervised release. B. Inasmuch as Goodson’s challenge to the condition of supervised release is within the scope of his appellate waiver, we must consider his argument that his waiver was unknowing and involuntary because the District Court did not conduct an adequate colloquy under" }, { "docid": "22129756", "title": "", "text": "described in any federal statute ... shall be sentenced in accordance with the provision of this chapter [227] so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2)....” 18 U.S.C. § 3551. Under chapter 227 of the Federal Crimes Code, the period of incarceration is but one component of the sentence. Other components may be probation under § 3561, supervised release under § 3583, a fíne under § 3571, and/or restitution under § 3556. Indeed, § 3583(a) provides that “[t]he court, in imposing a sentence to a term of imprisonment for a felony ... may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment.” 18 U.S.C. § 3583(a) (emphasis added). Subsection (d) of this statutory provision enumerates certain mandatory and discretionary conditions of supervised release that a defendant must comply with during any such term of supervision, and provides, as we noted above, that “[t]he court may order, as a further condition of supervised release ... any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d). Thus, the duration, as well as the conditions of supervised release are components of a sentence. By waiving his right to take a direct appeal of his sentence, Goodson waived his right to challenge the conditions of his supervised release, which were by definition a part of his sentence. See United States v. Perez, 514 F.3d 296 (3d Cir.2007) (concluding that restitution, which was part of defendant’s sentence, was subject to defendant’s appellate waiver). In our view, the text of the waiver before us establishes that the term “sentence” as used in Goodson’s appellate waiver applies to not only the period of incarceration that will be imposed, but also any other component of punishment. By stating that Goodson “waives the right to take a direct appeal from his ... sentence under ... 18 U.S.C. § 3742,” the provision explicitly bars any appeal relying upon § 3742 for jurisdiction. Because § 3742 is the only statutory section that provides jurisdiction for an appeal of" }, { "docid": "22336403", "title": "", "text": "of a $100 special assessment, and payment of a $3,000 fine during the three-year term of supervised release. Section IX, entitled “Defendant’s Agreement and Understanding of the Terms of This Plea Agreement,” also refers to Joyce’s waiver of his right to appeal: E. I am fully aware that if I were convicted after a trial and a sentence were imposed on me thereafter, I would have the right to appeal any aspect of my conviction and sentence. Knowing this, I voluntarily waive my right to appeal my conviction. Furthermore, I also knowingly and voluntarily agree to waive my right under 18 U.S.C. § 3742 to appeal any aspect of the sentence imposed in this case, if the court imposes a sentence within the parameters of this agreement, (emphasis added). The use of the words “any aspect of the sentence” in this preceding passage eliminates any arguable ambiguity about whether “sentence” means what 18 U.S.C. § 3742 says it means, or means only time served in prison. By agreeing to waive the right to appeal “any aspect of the sentence imposed in this case,” and to waive his right “under 18 U.S.C. § 3742” (which is the only source of any right to appeal the sentence), Joyce waived his right to appeal “any aspect” of the sentence, including not only any term of imprisonment, but also fines and conditions of supervised release. Joyce relies on the fact that the language of the waiver does not specifically refer to supervised release or any conditions of restriction the court might impose. Instead, he deems it significant that the plea agreement repeatedly distinguishes between a “sentence” and “supervised release,” or uses the word “sentence” to refer only to the term of imprisonment. Citing this distinction, Joyce argues that he did not knowingly and voluntarily waive his right to appeal the legality of the special conditions of release. We disagree. The agreement clearly states that Joyce is giving up his right to bring an appeal under 18 U.S.C. § 3742. Section 3742(a)(3) permits defendants to appeal if a sentence imposed by the district court is" }, { "docid": "22336411", "title": "", "text": "for child pornography. In my view, we should affirm the district court on the merits, instead of dismissing the appeal. I Joyce’s plea agreement contained the following provision: 1I.B. Waivers of appellate and collateral attack rights The defendant understands that by pleading guilty he waives his right to appeal his conviction. The defendant also understands and agrees that as consideration for the government’s commitments under this plea agreement, and if the court accepts this plea agreement and imposes a sentence within its parameters, he will knowingly and voluntarily waive his right, contained in 18 U.S.C. § 3742, to appeal the sentence imposed. Plea Agreement at 4. Three pages later, the plea agreement states that the maximum statutory penalties for a violation of 18 U.S.C. § 2252A(a)(5)(B) include: “1) a maximum sentence of 5 years, 2) a $250,000 fine, 3) a $100 mandatory special assessment, and 4) a three-year term of supervised release.” Plea Agreement at 7 (emphasis added). A comparison of these two passages reveals an ambiguity of the term “sentence.” In the appeal waiver provision, “sentence” may indirectly, by reference to § 3742, refer to the entire judgment imposed on Joyce, including the term of imprisonment, the fine, the special assessment, and the imposition of mandatory and special terms of supervised release. In the language detailing maximum penalties for a violation of 18 U.S.C. § 2252A(a)(5)(B), “sentence” only refers to the term of imprisonment. The lack of an explicit waiver of a right to appeal special conditions of supervised release and the dual meaning of “sentence” in different parts of Joyce’s plea agreement create an ambiguity as to what “sentence” means in the context of the plea agreement and its waiver provision. I recognize that the government’s interpretation of “sentence” as encompassing all aspects of the judgment is plausible, and thus my colleagues’ view is not entirely unreasonable. However, in my view, given the government’s choice of language in Joyce’s plea agreement, Joyce’s interpretation of “sentence” to encompass only the term of imprisonment is also plausible and likewise cannot be said to be unreasonable. The language in the plea" }, { "docid": "22336405", "title": "", "text": "greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(ll) than the maximum established in the guideline range[.] 18 U.S.C. § 3742(a)(3). This section notes that defendants usually have the right to appeal any “sentence” in which the district court gives a greater fine, prison term, period of supervised release, or stricter condition of supervised release than is authorized by the Sentencing Guidelines. A “sentence” thus clearly includes all those different forms of punishment. The word “sentence” encompasses both prison time and periods of supervised release in other parts of Title 18 as well. See United States v. Soto-Olivas, 44 F.3d 788, 790 (9th Cir.1995) (noting that under the “plain language” of 18 U.S.C. § 3583(a), supervised release is “a part of the sentence”); see also United States v. Liero, 298 F.3d 1175, 1178 (9th Cir.2002) (“[Section] 3583(a) clearly provide[s] that supervised release, just like a term of imprisonment, is ‘part of the sentence.’ Our cases dispel any doubt about what this means.”). We do note, however, that in addition to this broad meaning in the statute, we have employed the noun “sentence” to refer specifically to the term of imprisonment. See, e.g., United States v. Lamont, 330 F.3d 1249, 1251 (9th Cir.2003) (“The district court sentenced Lamont to twenty-four months with credit for time served, to be followed by three years of supervised release. Lamont has served his sentence and is currently on supervised release.”); United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir.2002) (per curiam) (“The district court imposed a 127-month sentence, plus a term of supervised release and a $200 special assessment.”). Despite the dual meaning of “sentence” in common usage, the statute that provides the only source of Joyce’s right to appeal is crystal clear. Under 18 U.S.C. § 3742(a)(3), a “sentence” can include fines, periods of imprisonment and supervised release, and mandatory" }, { "docid": "21452708", "title": "", "text": "that he should receive a 54-month sentence (at the low end of the plea agreement stipulation) because of various equities he believed were in his favor, including his relationship with his young daughter. He further claimed that other similarly situated defendants received comparable sentences. The district court rejected these arguments and sentenced Plasceneia-Alvarado to 60 months imprisonment (still at the lower end of his plea agreement’s stipulated range). Plascen-cia-Alvarado appeals this sentence as unreasonable in light of the 18 U.S.C. § 3553(a) factors. B. Torres Torres’ plea agreement stipulated to a fixed sentence of 66 months and acknowledged “that the Court retains full discretion with regard to the imposition of a term of supervised release, the conditions of supervised release, fines, forfeiture or restitution.” At sentencing, the district court accepted the Rule 11 plea agreement and sentenced Torres to the agreed upon term. The district court also imposed several conditions of supervised release, including that Torres (1) “shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court;” (2) “shall submit to mandatory drug testing pursuant to 18 U.S.C. § 3563(a)(5) and 18 U.S.C. § 3583(d)” (drug testing condition); and (3) “shall provide his probation officer with access to any requested financial information, including authorization to conduct credit checks and obtain copies of defendant’s Federal Income Tax Returns” (financial disclosure condition). Although Torres did not object to these conditions at sentencing, he now argues that the district court erred in imposing them. II. Analysis A. Garcia and Plasceneia-Alvarado As an initial matter, the government argues that we lack jurisdiction to review these defendants’ sentences because they each received a sentence within the range stipulated to in their plea agreements. We disagree. First, neither Garcia nor Plasceneia-Alvarado expressly waived the right to appeal the district court’s sentence. Cf. United States v. Joyce, 357 F.3d 921, 922-23 (9th Cir.2004) (“A defendant’s waiver of his appellate rights is enforceable if the language of the waiver encompasses his right to appeal on the grounds raised, and if the waiver" }, { "docid": "22336402", "title": "", "text": "Plea agreements are contracts between a defendant and the government, Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir.2003), and we generally construe ambiguous language in favor of the defendant. United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.2002). In this case, we do not find the plea agreement’s use of the word “sentence” to be ambiguous. The plea agreement states: B. Waivers of appellate and collateral attack rights The defendant understands that by pleading guilty he waives his right to appeal his conviction. The defendant also understands and agrees that as consideration for the government’s commitments under this plea agreement, and if the court accepts this plea agreement and imposes a sentence within its parameters, he will knowingly and voluntarily waive his right, contained in 18 U.S.C. § 871.2, to appeal the sentence imposed. (Emphasis added). This passage is located in Section II of the plea agreement, entitled “What the Defendant Agrees to Do.” Other agreements in that section include Joyce’s voluntary abandonment of his computer’s central processing unit and hard drive, payment of a $100 special assessment, and payment of a $3,000 fine during the three-year term of supervised release. Section IX, entitled “Defendant’s Agreement and Understanding of the Terms of This Plea Agreement,” also refers to Joyce’s waiver of his right to appeal: E. I am fully aware that if I were convicted after a trial and a sentence were imposed on me thereafter, I would have the right to appeal any aspect of my conviction and sentence. Knowing this, I voluntarily waive my right to appeal my conviction. Furthermore, I also knowingly and voluntarily agree to waive my right under 18 U.S.C. § 3742 to appeal any aspect of the sentence imposed in this case, if the court imposes a sentence within the parameters of this agreement, (emphasis added). The use of the words “any aspect of the sentence” in this preceding passage eliminates any arguable ambiguity about whether “sentence” means what 18 U.S.C. § 3742 says it means, or means only time served in prison. By agreeing to waive the right to appeal “any" }, { "docid": "22336410", "title": "", "text": "Joyce’s waiver of rights to appeal his sentence in his plea agreement that led to his conviction for possessing child pornography prevents him from challenging the conditions of supervised release that now restrict his Internet access. I would hold, to the contrary, that the term “sentence” as used in Joyce’s plea agreement and waiver is ambiguous in meaning, and, construing the ambiguity in Joyce’s favor, the waiver of appeal does not bar him from appealing the special conditions of supervised release imposed by the district court. Reaching the merits, I would uphold the special conditions of supervised release imposed by the district court because they are designed to meet the ends of rehabilitation and protection of the public. It is sensible for a district court reasonably to restrict Internet access by one convicted of possessing child pornography. The conditions imposed here as prerequisite to Joyce’s supervised release from prison protect the public, and serve Joyce as well, by making it less likely that he will further harm himself or others by recidivism on his proclivity for child pornography. In my view, we should affirm the district court on the merits, instead of dismissing the appeal. I Joyce’s plea agreement contained the following provision: 1I.B. Waivers of appellate and collateral attack rights The defendant understands that by pleading guilty he waives his right to appeal his conviction. The defendant also understands and agrees that as consideration for the government’s commitments under this plea agreement, and if the court accepts this plea agreement and imposes a sentence within its parameters, he will knowingly and voluntarily waive his right, contained in 18 U.S.C. § 3742, to appeal the sentence imposed. Plea Agreement at 4. Three pages later, the plea agreement states that the maximum statutory penalties for a violation of 18 U.S.C. § 2252A(a)(5)(B) include: “1) a maximum sentence of 5 years, 2) a $250,000 fine, 3) a $100 mandatory special assessment, and 4) a three-year term of supervised release.” Plea Agreement at 7 (emphasis added). A comparison of these two passages reveals an ambiguity of the term “sentence.” In the appeal waiver" }, { "docid": "22336412", "title": "", "text": "provision, “sentence” may indirectly, by reference to § 3742, refer to the entire judgment imposed on Joyce, including the term of imprisonment, the fine, the special assessment, and the imposition of mandatory and special terms of supervised release. In the language detailing maximum penalties for a violation of 18 U.S.C. § 2252A(a)(5)(B), “sentence” only refers to the term of imprisonment. The lack of an explicit waiver of a right to appeal special conditions of supervised release and the dual meaning of “sentence” in different parts of Joyce’s plea agreement create an ambiguity as to what “sentence” means in the context of the plea agreement and its waiver provision. I recognize that the government’s interpretation of “sentence” as encompassing all aspects of the judgment is plausible, and thus my colleagues’ view is not entirely unreasonable. However, in my view, given the government’s choice of language in Joyce’s plea agreement, Joyce’s interpretation of “sentence” to encompass only the term of imprisonment is also plausible and likewise cannot be said to be unreasonable. The language in the plea agreement detailing maximum penalties for a violation of 18 U.S.C. § 2252A(a)(5)(B) uses “sentence” only to refer to the term of imprisonment. In addition, page two of the government’s sentencing memorandum uses “sentence” to refer to the term of imprisonment and the fine, with conditions of supervised release being a separate category. Thus, it is not unreasonable for Joyce to construe the waiver of appeal as applying only to his term of imprisonment. The majority acknowledges that plea agreements “are contracts between a defendant and the government,” and that “we generally construe ambiguous language in favor of the defendant.” Slip op. at 922-23. Nonetheless, the majority errs by holding that no ambiguity exists in the plea agreement for reasons that in context are unconvincing. First, the majority cites to 18 U.S.C. § 3742(a)(3) for the proposition that “defendants usually have the right to appeal any ‘sentence’ in which the district court gives a greater fíne, prison term, period of supervised release, or stricter condition of supervised release than is authorized by the Sentencing Guidelines. A" }, { "docid": "22139721", "title": "", "text": "ordered to pay a $3,000 fine. Part of his supervised release conditions included a prohibition on being involved in any motorcycle club activities. The plea agreement contained two provisions relevant to this appeal. The first provision specifically waived the right to appeal the sentence: 5. Waiver of Defenses and Appeal Rights Defendant hereby waives any right to raise and/or appeal any and all motions, defenses, probable cause determinations, and objections which defendant has asserted or could assert to this prosecution and to the court’s entry of judgment against defendant and imposition of sentence under Title 18, United States Code, section 3742 (sentence appeals). The second provision set forth the negotiated terms of the sentence: Defendant may be sentenced to a period of incarceration which is not to exceed 36 months. The parties agree that the Court may depart upward or downward under the sentencing guidelines. The court may, at its discretion, sentence defendant to a period of incarceration of between zero and thirty-six months, including a sentence of probation. The court applied the guidelines and found an offense level of 12 with a criminal history of category IV, yielding a range of 21-27 months. It then departed from the range and imposed a sentence of 36 months based on three reasons: 1) Bolinger’s criminal history was under-represented; 2) the parties had stipulated in the plea agreement to a departure of up to 36 months; and 3) his connection to the drug transactions was a “close question.” Bolinger appeals his sentence, claiming that the district court improperly set out his offense level and then improperly departed from that level to 36 months. He also argues that he should not be prohibited from engaging in motorcycle club activities. II. DISCUSSION A. Waiver Whether the appellant waived his statutory right to appeal is a matter of law we review de novo. United States v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir.1990). 18 U.S.C. § 3742(a)(2) permits the filing of a notice of appeal if the sentence was imposed “as a result of an incorrect application of the sentencing guidelines.” Bolinger expressly waived the" }, { "docid": "23442008", "title": "", "text": "provision that arguably foreclosed the appeal. V. For the foregoing reasons, we affirm the judgment of the district court. . Association with minors who must be dealt with in order to obtain ordinary commercial services, such as cashiers, was excepted from the condition. . Several of our sister circuits have found that similar broad waivers of appellate rights to challenge a sentence include the right to challenge the conditions of supervised release imposed. See United States v. Goodson, 544 F.3d 529, 537-38 (3d Cir.2008) (waiver of right to appeal sentence under 18 U.S.C. § 3742 included waiver of right to appeal conditions of supervised release); United States v. Joyce, 357 F.3d 921, 923-24 (9th Cir.2004) (finding waiver of right to appeal \"any aspect” of sentence imposed waived right to challenge special conditions); United States v. Sines, 303 F.3d 793, 798-99 (7th Cir.2002) (finding that challenge to special condition was barred by waiver of right to appeal sentence); cf. United States v. Andis, 333 F.3d 886, 892-94 (8th Cir.2003) (en banc) (\"It is undisputed that the scope of [the defendant's] waiver includes the conditions of his supervised release.”)." }, { "docid": "22336400", "title": "", "text": "TALLMAN, Circuit Judge: Brian Francis Joyce seeks to challenge on First Amendment grounds the Internet access and computer use restrictions imposed as special conditions of supervised release following his conviction for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The government argues that Joyce waived his right to appeal these conditions by signing a plea agreement that contained an express waiver of appellate rights under 18 U.S.C. § 3742(a). We conclude that Joyce validly waived his right to bring this appeal, and we dismiss it for lack of jurisdiction. I Joyce was indicted for possessing more than 600 images of child pornography on his computer. The parties entered a plea agreement in which Joyce waived his right to appeal his conviction and “any aspect of the sentence imposed.” After Joyce’s sentencing hearing, the district court imposed a 27-month term of imprisonment and three years of supervised release, and also specified five special conditions of supervised release. Joyce challenges as unreasonable the two conditions that limit his computer use. II Before we can address the merits of Joyce’s challenge to these special conditions, we must first determine whether he waived his right to appeal them by signing the plea agreement. See United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999) (“It would overreach our jurisdiction to entertain an appeal when the plea agreement effectively deprived us of jurisdiction.”). Joyce agrees that the appeal waiver he signed prevents him from challenging the 27-month term of imprisonment. Instead, he argues that the special conditions of release are not part of his “sentence,” and thus that the language of his appellate waiver does not bar this challenge. Whether an appellant has waived his right to appeal is a question of law that we review de novo. United States v. Shimoda, 334 F.3d 846, 848 (9th Cir.2003). A defendant’s waiver of his appellate rights is enforceable if the language of the waiver encompasses his right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996)." }, { "docid": "22604808", "title": "", "text": "a pro se motion on March 11, 2008, seeking a reduction in his sentence based on Amendment 706. The court granted Leniear’s subsequent request for appointment of counsel. After holding a hearing on May 28, 2008, the district court denied the resentencing motion. The court concluded that it lacked jurisdiction to modify Leniear’s sentence because, in light of the grouping rules under U.S.S.G. § 3D1.4, Amendment 706 did not lower the applicable guideline range. Leniear timely appealed. II The government contends that the instant appeal is barred by the waiver contained in its plea agreement with Leniear: The defendant also understands and agrees that as consideration for the government’s commitments under this plea agreement, and if the court accepts this plea agreement and imposes a sentence no greater than the maximum statutory penalties available for the offense of conviction, including any forfeiture under this plea agreement, he will knowingly and voluntarily waive his right, contained in 18 U.S.C. § 3742, to appeal the sentence — including all conditions of supervised release and forfeiture — imposed. We consider de novo whether, pursuant to a plea agreement, a defendant waived his right to appeal. United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir.2005). Specifically, “[a] defendant’s waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” Id. (quoting United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.2005)). As Leniear does not argue on appeal that the waiver was anything other than knowing and voluntary, we consider only whether the instant appeal is encompassed within the waiver’s scope. Although Leniear appeals pursuant to 18 U.S.C. § 3742, his appeal is not barred by the above waiver. “The scope of a knowing and voluntary waiver is demonstrated by the express language of the plea agreement.” United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir.2000). “Plea agreements are generally construed according to the principles of contract law, and the government, as drafter, must be held to an agreement’s literal terms.”" }, { "docid": "22400923", "title": "", "text": "receives de novo review. See United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). B. The right to appeal a sentence conferred by 18 U.S.C. § 3742 There is no constitutional right to appeal a criminal sentence. See Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); see also United States v. Melancon, 972 F.2d 566, 567 (“The right to appeal is a statutory right, not a constitutional right.”). Congress has, however, provided a federal criminal defendant with a limited statutory right to appeal his sentence, as follows: “(a) Appeal by a defendant. — A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence— (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(ll) than the maximum established in the guideline range; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.” 18 U.S.C.A. § 3742. These four statutory grounds are the only grounds provided for a defendant to appeal an otherwise final sentence. A sentence imposed pursuant to Fanfan error would normally be appealable under section .3742(a)(1) as a sentence “imposed in violation of law,” or, arguably, under section 3742(a)(2) as a sentence “imposed as a result of an incorrect application of the sentencing guidelines.” With certain specified exceptions, however, Burns expressly waived the rights conferred by section 3742 to appeal his sentence. Burns does not argue that any of the exceptions stated in the plea agreement to its appeal waiver provisions is applicable. He does not claim that his guilty plea is invalid or seek to set it aside. Burns also does not argue that his" }, { "docid": "22129757", "title": "", "text": "any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d). Thus, the duration, as well as the conditions of supervised release are components of a sentence. By waiving his right to take a direct appeal of his sentence, Goodson waived his right to challenge the conditions of his supervised release, which were by definition a part of his sentence. See United States v. Perez, 514 F.3d 296 (3d Cir.2007) (concluding that restitution, which was part of defendant’s sentence, was subject to defendant’s appellate waiver). In our view, the text of the waiver before us establishes that the term “sentence” as used in Goodson’s appellate waiver applies to not only the period of incarceration that will be imposed, but also any other component of punishment. By stating that Goodson “waives the right to take a direct appeal from his ... sentence under ... 18 U.S.C. § 3742,” the provision explicitly bars any appeal relying upon § 3742 for jurisdiction. Because § 3742 is the only statutory section that provides jurisdiction for an appeal of a condition of supervised release, Goodson’s waiver bars his challenge. In United States v. Joyce, the Ninth Circuit considered this same issue. It reasoned: Despite the dual meaning of “sentence” in common usage, the statute that provides the only source of Joyce’s right to appeal is crystal clear. Under 18 U.S.C. § 3742(a)(3), a “sentence” can include fines, periods of imprisonment, and supervised release, and mandatory and special conditions of supervised release. That is the only statutory basis upon which Joyce may invoke the jurisdiction of this court to challenge any aspect of the sentence imposed, including an attack on specific conditions of his supervised release. 357 F.3d 921, 924 (9th Cir.2004). The Tenth Circuit agreed with this rationale in United States v. Sandoval, 477 F.3d 1204 (10th Cir.2007), concluding that “[sjupervised-release conditions are part of the sentence: and the reference to 18 U.S.C. § 3742 (the statutory basis for sentence appeals) in ¶ 10 of the plea agreement makes clear that the waiver encompasses all appellate challenges to the sentence other than those falling" }, { "docid": "23442007", "title": "", "text": "does not suggest that we should overlook the terms of Ferguson’s appeal waiver. In Lee, the defendant challenged a condition of supervised release that was to follow a 188-month term of imprisonment. Id. Ferguson correctly notes that in Lee we entertained the defendant’s appeal challenging a special condition of supervised release despite fact that the plea agreement contained an appeal waiver. Id. However, in Lee we elected to consider the appeal of an imposed special condition despite the fact that “the waiver of appeal may arguably foreclose [the] appeal, because th[e] case possibly implicates ineffective assistance [of] ... counsel.” Id. Here, Ferguson has limited his claim of ineffective assistance of counsel to the failure to preserve the ability to appeal the district court’s denial of the suppression motion. He challenges the special conditions solely on the grounds that the district court abused its discretion, in imposing them. As a result, his argument does not fall within the limited bounds of our decision in Lee to reach the challenge to special conditions despite an appellate waiver provision that arguably foreclosed the appeal. V. For the foregoing reasons, we affirm the judgment of the district court. . Association with minors who must be dealt with in order to obtain ordinary commercial services, such as cashiers, was excepted from the condition. . Several of our sister circuits have found that similar broad waivers of appellate rights to challenge a sentence include the right to challenge the conditions of supervised release imposed. See United States v. Goodson, 544 F.3d 529, 537-38 (3d Cir.2008) (waiver of right to appeal sentence under 18 U.S.C. § 3742 included waiver of right to appeal conditions of supervised release); United States v. Joyce, 357 F.3d 921, 923-24 (9th Cir.2004) (finding waiver of right to appeal \"any aspect” of sentence imposed waived right to challenge special conditions); United States v. Sines, 303 F.3d 793, 798-99 (7th Cir.2002) (finding that challenge to special condition was barred by waiver of right to appeal sentence); cf. United States v. Andis, 333 F.3d 886, 892-94 (8th Cir.2003) (en banc) (\"It is undisputed that the" }, { "docid": "22336404", "title": "", "text": "aspect of the sentence imposed in this case,” and to waive his right “under 18 U.S.C. § 3742” (which is the only source of any right to appeal the sentence), Joyce waived his right to appeal “any aspect” of the sentence, including not only any term of imprisonment, but also fines and conditions of supervised release. Joyce relies on the fact that the language of the waiver does not specifically refer to supervised release or any conditions of restriction the court might impose. Instead, he deems it significant that the plea agreement repeatedly distinguishes between a “sentence” and “supervised release,” or uses the word “sentence” to refer only to the term of imprisonment. Citing this distinction, Joyce argues that he did not knowingly and voluntarily waive his right to appeal the legality of the special conditions of release. We disagree. The agreement clearly states that Joyce is giving up his right to bring an appeal under 18 U.S.C. § 3742. Section 3742(a)(3) permits defendants to appeal if a sentence imposed by the district court is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(ll) than the maximum established in the guideline range[.] 18 U.S.C. § 3742(a)(3). This section notes that defendants usually have the right to appeal any “sentence” in which the district court gives a greater fine, prison term, period of supervised release, or stricter condition of supervised release than is authorized by the Sentencing Guidelines. A “sentence” thus clearly includes all those different forms of punishment. The word “sentence” encompasses both prison time and periods of supervised release in other parts of Title 18 as well. See United States v. Soto-Olivas, 44 F.3d 788, 790 (9th Cir.1995) (noting that under the “plain language” of 18 U.S.C. § 3583(a), supervised release is “a part of the sentence”); see also United States v. Liero, 298 F.3d 1175," }, { "docid": "22336406", "title": "", "text": "1178 (9th Cir.2002) (“[Section] 3583(a) clearly provide[s] that supervised release, just like a term of imprisonment, is ‘part of the sentence.’ Our cases dispel any doubt about what this means.”). We do note, however, that in addition to this broad meaning in the statute, we have employed the noun “sentence” to refer specifically to the term of imprisonment. See, e.g., United States v. Lamont, 330 F.3d 1249, 1251 (9th Cir.2003) (“The district court sentenced Lamont to twenty-four months with credit for time served, to be followed by three years of supervised release. Lamont has served his sentence and is currently on supervised release.”); United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir.2002) (per curiam) (“The district court imposed a 127-month sentence, plus a term of supervised release and a $200 special assessment.”). Despite the dual meaning of “sentence” in common usage, the statute that provides the only source of Joyce’s right to appeal is crystal clear. Under 18 U.S.C. § 3742(a)(3), a “sentence” can include fines, periods of imprisonment and supervised release, and mandatory and special conditions of supervised release. That is the only statutory basis upon which Joyce may invoke the jurisdiction of this court to challenge any aspect of the sentence imposed, including an attack on specific conditions of his supervised release. Given this language, we hold that Joyce knowingly and voluntarily waived his right to challenge the special conditions of supervised release on the grounds he now raises. The dissent reasons that we are bound by our prior decision in United States v. Bolinger, 940 F.2d 478 (9th Cir.1991), to reach the merits of Joyce’s appeal. In Bolinger, a defendant challenged his 36-month term of imprisonment and a special condition of supervised release that forbade him from associating with motorcycle gangs. Id. at 479. Despite holding that Bolinger’s plea agreement validly waived his right to appeal, the court nevertheless proceeded to address the merits of his arguments regarding the special condition. Id. at 480. The court did so without any discussion about whether Bolinger’s waiver of his right to appeal his “sentence” included only terms of" }, { "docid": "22139720", "title": "", "text": "FARRIS, Circuit Judge: Robert Bolinger appeals his criminal sentence after pleading guilty to the charge of being a felon in possession of a firearm. Bolinger argues that the district court misapplied the sentencing guidelines and placed an impermissible condition on his supervised release. Bolinger’s negotiated plea agreement expressly waived his right to appeal the sentence pursuant to 18 U.S.C. § 3742. We hold the waiver enforceable and thus do not consider his claims that the guidelines were misapplied. We also affirm the conditions the district court set for his supervised release. I. BACKGROUND Bolinger was indicted on four counts: conspiracy to distribute cocaine, aiding and abetting in possession with intent to distribute cocaine, carrying a firearm during a drug trafficking crime, and being a convicted felon in possession of a firearm. As part of a plea bargain in which the government agreed to drop the first three counts, Bolinger pleaded guilty to the last count on March 20, 1990. On May 29, he was sentenced to 36 months incarceration and 36 months supervised release and ordered to pay a $3,000 fine. Part of his supervised release conditions included a prohibition on being involved in any motorcycle club activities. The plea agreement contained two provisions relevant to this appeal. The first provision specifically waived the right to appeal the sentence: 5. Waiver of Defenses and Appeal Rights Defendant hereby waives any right to raise and/or appeal any and all motions, defenses, probable cause determinations, and objections which defendant has asserted or could assert to this prosecution and to the court’s entry of judgment against defendant and imposition of sentence under Title 18, United States Code, section 3742 (sentence appeals). The second provision set forth the negotiated terms of the sentence: Defendant may be sentenced to a period of incarceration which is not to exceed 36 months. The parties agree that the Court may depart upward or downward under the sentencing guidelines. The court may, at its discretion, sentence defendant to a period of incarceration of between zero and thirty-six months, including a sentence of probation. The court applied the guidelines and" } ]

[ { "docid": "14742520", "title": "", "text": "claim is for unmatured interest. 11 U.S.C. § 502. . Section 726 of the Bankruptcy Code provides that: (a) ... property of the estate shall be distributed— (1) first, in payment of claims of the kind specified in, and in the order specified in, section 507 of this title [ (prioritized claims) ]; (2) second, in payment of any allowed unsecured claim, other than a claim of a kind specified in paragraph (1), (3), or (4) of this subsection ...; (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. . We rely upon Guardian Investment to provide structure for our analysis of the contingent nature of WTMC's liability for post-petition interest, not to command of itself the result we reach on the basis of §§ 502(b) and 726(a). We need not, therefore, concern ourselves with factual distinctions between Guardian Investment and the present case. . Of course, if assets remain after distributions are made pursuant to § 726(a)(l)-(4), then liability for post-petition interest will be established. . As a preliminary matter, the IRS contends, erroneously, that, because the United States did not waive sovereign immunity, the district court lacked jurisdiction to consider whether WTMC was entitled to a refund for the penalty. It maintains that, as a statutory condition precedent to a refund suit, the taxpayer must file a claim for" } ]

[ { "docid": "4242515", "title": "", "text": "the context of determining whether, under Hood’s footnote five, discharge in the instant case would offend the State’s sovereign immunity, not whether the debt was dischargeable vel non. Indeed, the State criticized the lower courts in its brief to us, asserting that they had “fail[ed] to distinguish and apply the State’s claim of sovereign immunity from the question of dischargeability of debt with both courts relying on the In re Hickman case, which ... did not even involve a sovereign immunity issue.” The special concurrence similarly conflates the State’s sovereign immunity argument with this so-called “nondischargeability claim” — a claim not advanced to us or to the lower courts. As the issue of dischargeability was never raised, we limit our holding to the issue before us — whether discharge of Soileau’s debt impermissibly infringes on the State’s sovereign immunity. Even assuming arguendo, however, that there is in fact a “statutory question raised here,” as the Concurrer suggests, Hickman’s holding that § 523(a)(7) only excludes from discharge those debts incurred by wrongdoing or misconduct — and that judgments against the sureties on bail bonds (as distinguished from “forfeitures” by the defaulting principals), such as the one at issue here are dischargeable— should not be revisited. Although no effort to rehear Hickman was mounted before its mandate issued in 2001, the Con-currer now seeks to use the instant appeal to challenge Hickman en banc by contending “[t]hat Soileau owes a forfeiture debt to a governmental entity should be disposi-tive” that the debt is nondischargeable. Contrary to the Concurrer’s position, however, Hickman’s interpretation of § 523(a)(7) is consistent with the established definitions of that section’s exclusive trio of fines, penalties, and forfeitures. From the standpoint of statutory construction, “forfeiture” in § 523(a)(7) must be understood in light of its relationship to the other nouns in that section’s exclusive list, ie., “fine” and “penalty.” According to Black’s Law Dictionary, a forfeiture is: (1) “[t]he divestiture of property without compensation,” (2) “[t]he loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty,” (3) “[sjomething (esp. money or" }, { "docid": "21684615", "title": "", "text": "Dept. of Environmental Resources v. Tri-State Clinical Laboratories, Inc., 178 F.3d 685, 688 (3d Cir.1999), citing Pa. Dept. of Pub. Welfare v. Davenport, 495 U.S. 552, 557-58, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990); Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). Consequently, our analysis of the “fine, penalty or forfeiture” prong of § 523(a)(7) must begin with the plain language of the statute. On its face, the judgment against Nam seems to come within the plain meaning of the term “forfeiture.” For example, “forfeiture” is defined in Black’s Law Dictionary as “a divestiture of specific property without compensation; ... [a] deprivation or destruction of a right in consequence of the nonperformance of some obligation or condition.” Blaok’s Law Diotionaey 650 (6th Ed. 1990). “Forfeiture” is defined by Webster’s Dictionary as “the divesting of the ownership of particular property of a person on account of the breach of a legal duty and without any compensation to him: the loss of property or money on account of one’s breach of the terms of an agreement, bond, or other legal obligation.” Webster’s Third New International Dictionary (1971). Clearly, the judgment against Nam arose from David’s nonperformance of his obligation to appear in court and Nam’s breach of his duty to produce David for trial. Moreover, the judgment does not compensate the City for any pecuniary loss suffered but instead serves as an incentive to the surety to prevent the defendant’s flight and to produce him insofar as the surety is capable. The District Court, however, attempted to construe § 523(a)(7) using traditional canons of construction. We find that this attempt at construction results in fact in writing the term “forfeiture” out of the statute. As a preliminary matter, we note that the District Court’s conclusion that a forfeiture must be “penal” in order to come within the exception conflicts with the plain language of the statute. Nothing in that language equates a forfeiture with a penalty. Quite the contrary, “penalty” and “forfeiture” are two distinct terms within the phrase “fine, penalty, or forfeiture.” Citing Kelly v." }, { "docid": "4242517", "title": "", "text": "property) lost or confiscated by this process; a penalty”, (4) “A destruction or deprivation of some estate or right because of the failure to perform some obligation or condition contained in the contract.” The American Heritage Dictionary defines a forfeiture as “the act of surrendering something as a forfeit,” then defines forfeit as “something surrendered as punishment for a crime, offense, error, or breach of contract.” Although these definitions alone might leave open the possibility that the type of judgment debt at issue here should be considered a forfeiture for purposes of § 523(a)(7), Congress’s synonym-izing use of “forfeiture” with “penalty” and “fine” supports Hickman’s more narrow interpretation of this section as applicable only to takings grounded in wrongful acts and effectuating a punishment therefor. In Hickman, we explained: A penalty is “[a]n elastic term with many different shades of meaning; it involves [the] idea of punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally confined to pecuniary punishment.” Black’s Law Dictionary 1133 (6th ed.1990). Central to the definition of penalty is the “idea of punishment” — “[p]unishment imposed on a wrongdoer, esp. in the form of imprisonment or fine. Though usu. for crimes, penalties are also sometimes imposed for civil wrongs.” Black’s Law Dictionary 1153 (7th ed.1999). The term penalty, however, may also include “[t]he sum of money which the obligor of a bond undertakes to pay in the event of his omitting to perform or carry out the terms imposed upon him by the conditions of the bond,” Black’s Law Dictionary 1133 (6th ed.1990), or “[ejxcessive liquidated damages that a contract purports to impose on a party that breaches.” Black’s Law Dictionary 1153 (7th ed.1999). Although focusing on punishment for criminal and civil wrongs, the definition of penalty, like forfeiture, could be read expansively to include the [bail bondsman’s] debt. A fine, on the other hand, relates solely to “[a] pecuniary punishment or civil penalty payable to the treasury.” Black’s Law Dictionary 647 (7th ed.1999). The Hickman court summarized, “[t]he definitions of penalty and fine reflect the traditional understanding of the these terms as" }, { "docid": "17221735", "title": "", "text": "debt “to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” 11 U.S.C. § 523(a)(7). We believe that Mr. Collins’s debt for the bail bonds is not a “fine, penalty, or forfeiture” within the meaning of Section 523(a)(7). Therefore, this debt is dischargeable in bankruptcy. Bankruptcy courts that have considered the dischargeability of bail bond debts have reached different conclusions. Some courts have held that these debts are dis-chargeable in bankruptcy, finding them more akin to a contractual obligation than a “penalty” or “forfeiture.” See In re Damore, 195 B.R. 40 (Bankr.E.D.Pa.1996); In re Midkiff, 86 B.R. 239 (Bankr.D.Colo.1988); In re Paige, No. 86 B 8072 C, 1988 WL 62500 (Bankr.D.Colo. Apr. 15, 1988). Other courts have held that the debts are not dischargeable, citing concerns about the effective functioning of the bail system. See In re Scott, 106 B.R. 698, 701 (Bankr.S.D.Ala.1989) (noting that discharge would “thwart the public welfare objectives served by the state’s [garnishment] action”); In re Bean, 66 B.R. 454, 457 (Bankr.D.Colo.1986) (“this entire system could be undermined or destroyed if those persons who post appearance bonds may simply discharge their obligations under the protection of the Bankruptcy Code”). The nondischargeable “fine, penalty, or forfeiture” under § 523(a)(7) is an obligation that is essentially penal in nature. The Supreme Court has described this provision as “creating] a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures.” Kelly v. Robinson, 479 U.S. 36, 51, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (emphasis added). In Kelly v. Robinson the Court held that restitution ordered by a court as part of a criminal sentence is nondischargeable under § 527(a)(7), noting that “the decision to impose restitution does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant.” Id. at 52. It went on to explain that “[u]nlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is" }, { "docid": "12670070", "title": "", "text": "IV. Analysis Our analysis here comes down to three issues: (1) the scope of the exception to discharge delineated by 11 U.S.C. § 523(a)(7), (2) the character of the debt owed to the Commonwealth by Gi Nam, and (3) whether that debt consequently falls within § 523(a)(7). A. Construction of 11 U.S.C. § 523(a)(7) 11 U.S.C. § 523 states, in pertinent part: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt - (7) to the extent such debt is for a[l] fine, penalty, or forfeiture [2] payable to and for the benefit of a governmental unit, and [3] is not compensation for actual pecuniary loss “To determine whether [a debt] is dischargeable under § 523(a)(7), we must determine whether [the] debt meets the three requirements of the section.” In re Rashid, 210 F.3d 201, 206 (3d Cir.2000). For the purposes of this appeal, there is no dispute between the parties that Gi Nam’s debt as alleged is payable and for the benefit of a governmental unit, either or both of the Commonwealth of Pennsylvania and the City of Philadelphia, nor is there any dispute that the $1,000,000 bail bond debt, as alleged, is not compensation for any pecuniary loss by those governmental units or anyone else . Thus, we need only concern ourselves with the scope of the statute’s “fine, penalty, or forfeiture” language. The City argues that since Gi Nam’s bail bond debt is in fact a “forfeiture” of the bond amount resulting from his son’s failure to appear, the debt falls within the plain language of the statute. The Debtor, conversely, argues that the statute only creates an exception for penal debts, into which category Nam’s obligation does not fall. We first note that both the Supreme Court and the only Court of Appeals to address the question of the dischargeability under § 523(a)(7) of a surety’s bail bond debt have found that § 523(a)(7) applies to penal sanctions. In considering this provision in Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), the" }, { "docid": "4242533", "title": "", "text": "nondischargeable. Section 523(a)(7) of the Code states that a debt is nondischargeable “to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty.” 11 U.S.C. § 523(a)(7) (emphasis added). The panel in Hickman interpreted this language to mean that only “punitive or penal forfeiture[s]” were nondischargeable, and that bail bond forfeitures, which it erroneously interpreted as contractual in nature, were not covered by § 523(a)(7). Id. at 406. A better approach to § 523(a)(7) was taken by a Third Circuit panel (including now-Justice Alito) that held commercial bail bond forfeitures nondischargeable within the plain meaning of § 523(a)(7). Dobrek v. Phelan, 419 F.3d 259 (3d Cir. 2005). As Dobrek correctly points out, regardless whether bail bonds are contractual in nature, there is no basis for Hickman’s holding that § 523(a)(7) “is restricted in scope to exempt from dis-chargeability only obligations of a [purely] penal nature,” as “forfeitures” are included in § 523(a)(7) without respect to their nature. Dobrek, 419 F.3d at 267 (quoting City of Philadelphia v. Nam {In re Nam), 273 F.3d 281, 287 (3d. Cir.2001)). That Soileau owes a forfeiture debt to a governmental entity should be dispositive here. Moreover, state criminal proceedings are not the “usual case” in bankruptcy, and the Supreme Court has refused to allow bankruptcy jurisdiction to interfere with this traditional realm of state authority. In Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), the Supreme Court noted its “deep conviction that federal bankruptcy courts should not invalidate the results of state criminal proceedings. The right to formulate and enforce penal sanctions is an important aspect of the sovereignty retained by the States.” Id. at 47, 107 S.Ct. at 360. Neither Hood nor Katz conflicts with Kelly, whose authoritativeness we inferior courts must recognize. Thus, the question whether bail bond forfeitures in Texas are criminal matters is critical to determining the scope of § 523(a)(7). In this regard, Hickman seriously misinterpreted Texas law when it" }, { "docid": "1174631", "title": "", "text": "was noncompensatory in nature). Still other courts have held similar judicial fines or penalties nondischargeable even though payable to a private litigant. In re Winn, 92 B.R. 938 (Bankr.M.D.Fla.1988) (A contempt judgment payable to the opposing party was determined not to be compensation for actual pecuniary loss, even though civil in nature, and to be for the purpose of vindicating the dignity and authority of the court and, therefore, for the benefit of a governmental unit.). In re Klein, 31 B.R. 947 (Bankr.Colo.1983) (Contempt fine for failure to deliver children in accordance with custody order was a penalty imposed to uphold the dignity of the court and was non-compensatory in nature; therefore, it was nondischargeable even though payable directly to the opposing party.) In re Marini, 28 B.R. 262 (Bankr.E.D.N.H.1983) (A fine for violation of a temporary restraining order construed to be primarily to uphold the dignity of the court even though payable directly to the opposing party and therefore non-dischargeable.) The language of § 523(a)(7) is clear and unambiguous. It holds a debt nondischargeable to the extent it is a “fine, penalty, ... payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, (emphasis added). The Supreme Court of the United States has told us bankruptcy judges simply to look at the “plain meaning” of the statute. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). As a least one other bankruptcy court has put it, This court must respectfully and reluctantly disagree. Although there are certainly excellent policy reasons for the ‘totality of the circumstances’ inquiry adopted by Marini and its progeny, that type of analysis is demonstrably at odds with the plain meaning of the statute. In re Strutz, supra at 510. The language of § 523(a)(7) is clear. In order to be nondis-chargeable the fine or penalty must be “payable to and for the benefit of a governmental unit”. Further, it must not be compensatory in nature. In this case, the Rule 11 sanctions are not payable to" }, { "docid": "21684630", "title": "", "text": "nondischargeability'of penalties and forfeitures payable to the government and not in remuneration of a pecuniary loss was so “uniformly accepted” by 1978 that Congress incorporated it into the Code as an explicit statutory exception to discharge-ability in § 523(a)(7). Ron Pair, 489 U.S. at 245 n. 8, 109 S.Ct. 1026; Kelly, 479 U.S. at 44-46, 107 S.Ct. 353, quoting 1A Collier on Bankruptcy ¶ 17.13, at 1609-10 & n. 10 (14th ed. 1978); id. at 51, 107 S.Ct. 353 (recognizing that § 523(a)(7) “codified the judicially created exception to discharge for fines[, penalties and forfeitures]”). C. CASE LAW The line of authority underlying this judicially-created exception is an old and venerable one, stretching back to the turn of the twentieth century. In In re Caponigri, 193 F. 291, 292 (S.D.N.Y.1912), Judge Learned Hand addressed the issue whether a claim of the United States on a forfeited recognizance for bail in a criminal case, asserted against a debtor who had acted as surety for a defendant who fled, was allowable, given that it constituted a penalty or forfeiture under former § 57j. Significantly, in Caponigri, as in the instant case, the debtor was a surety for the criminal defendant and not the defendant himself. Judge Hand held that “the recovery on a recognizance for bail is essentially the recovery of a penalty, and is a forfeiture.” 193 F. at 292. Judge Hand adhered to the concept of a penalty being by definition unrelated to any pecuniary loss; the amount of a penal obligation, he wrote, “is measured neither by the obligee’s loss nor by the valuation placed by him upon what he has given in exchange.” Id. In the years that followed, Caponigri came to be viewed as controlling authority on the question of the allowability of forfeited bail bonds. See, e.g., In re Lake, 22 Am. Bankr.N.S. 168 (F.Ref. Minn.1932). More significantly, however, the Caponigri decision provided an analytical framework for defining debts. This framework was applied to determine the allowability of types of penalties and forfeitures other than bail bonds. . Many cases applied Judge Hand’s penalty test to" }, { "docid": "4242518", "title": "", "text": "is the “idea of punishment” — “[p]unishment imposed on a wrongdoer, esp. in the form of imprisonment or fine. Though usu. for crimes, penalties are also sometimes imposed for civil wrongs.” Black’s Law Dictionary 1153 (7th ed.1999). The term penalty, however, may also include “[t]he sum of money which the obligor of a bond undertakes to pay in the event of his omitting to perform or carry out the terms imposed upon him by the conditions of the bond,” Black’s Law Dictionary 1133 (6th ed.1990), or “[ejxcessive liquidated damages that a contract purports to impose on a party that breaches.” Black’s Law Dictionary 1153 (7th ed.1999). Although focusing on punishment for criminal and civil wrongs, the definition of penalty, like forfeiture, could be read expansively to include the [bail bondsman’s] debt. A fine, on the other hand, relates solely to “[a] pecuniary punishment or civil penalty payable to the treasury.” Black’s Law Dictionary 647 (7th ed.1999). The Hickman court summarized, “[t]he definitions of penalty and fine reflect the traditional understanding of the these terms as punitive or penal sanctions imposed for some form of wrongdoing. Their inclusion in § 523(a)(7) implies that Congress intended to limit the section’s application to forfeitures imposed upon a wrongdoing debtor.” Mindful of “the principle that exceptions to discharge are to be narrowly construed,” we agree with Hickman’s interpretation of § 523(a)(7) as excepting from discharge only those debts incurred as a result of misconduct or wrongdoing. Indeed, this holding is consistent with the purpose of the Bankruptcy Code and, specifically, with § 523(a). We cannot overemphasize here the importance of the distinction between the absconding criminal defendants as principals and the bail bondsmen as sureties: The former would properly be denied discharge on their own cash or property bonds as “forfeitures” in the § 523(a)(7) sense, but the latter are not forfeiting wrongdoers; they are ordinary judgment debtors who are not guilty of any wrongful conduct that should prohibit discharge in bankruptcy. The Concurrer maintains that “Hickman’s conclusion that ‘[b]ail bond judgments are not penal sanctions ... but rather arise from a contractual duty,’" }, { "docid": "14447080", "title": "", "text": "tax debt should itself not be discharge-able. Intuitively, that makes sense. While some may have intended the statute to have this meaning, it does not say that. The section provides in relevant part: A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (7) to the extent such a debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty— (A) relating to a tax of a kind not specified in paragraph (1) of this subsection; or (B) imposed with respect to a transaction or event that occurred before three years before the date of the filing of the petition; 11 U.S.C. § 523(a)(7). Carefully parsed, the section initially makes nondischargeable a “debt that is for a fine, penalty or forfeiture payable to and for the benefit of a governmental unit.” Withdrawn from this class, however, are any such fines, penalties, or forfeitures that are “compensation for actual pecuniary loss.” These are dischargeable. The double negative, “does not discharge” and “not compensation for actual pecuniary loss,” accomplishes this end. Another group of penalties are withdrawn from the nondischargeable group. These appear in parts (A) and (B) of § 523(a)(7). Part (A) withdraws tax penalties attributable to taxes which are not nondischargeable. That is, part (A) makes dischargeable tax penalties attributable to dischargeable taxes. This follows because part (A) relates “to a tax of a kind not specified in paragraph (1) of this. subsection.” 11 U.S.C. § 523(a)(7)(A) (emphasis added). Those types specified in paragraph (1) are not dischargeable taxes. In relevant part “paragraph (1) of this subsection” makes not dischargeable “any debt” that is “for a tax ... with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax.” 11 U.S.C. § 523(a)(1)(C). The other group of penalties withdrawn from the nondischargeable group is described in part (B). It is quite straightforward. It makes dischargeable any tax penalty “imposed with respect" }, { "docid": "17221734", "title": "", "text": "Forcing the Commonwealth to make such a choice “does not amount to the exercise of federal judicial power to hale a state into federal court against its will and in violation of the Eleventh Amendment.” Antonelli 123 F.3d at 787. Again, the Commonwealth was not summonsed to appear in the proceedings brought on by the Collinses’ motion to reopen. Moreover, the bankruptcy court did not need to assert jurisdiction over the Commonwealth to determine the dischargeability of the bail bond debt in conjunction with its decision to reopen. The court had the power to do that because it had jurisdiction over the debtors and their ease. See Texas v. Walker, 142 F.3d at 822 (noting that a bankruptcy case cannot be “equat[ed] ... with a suit against the state”); Antonelli 123 F.3d at 787. The Eleventh Amendment was not implicated. III. We now consider whether Mr. Collins’s suretyship obligation on the bail bonds is dischargeable in bankruptcy. Section 523 of the Bankruptcy Code provides that a discharge does not release an individual debtor from any debt “to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” 11 U.S.C. § 523(a)(7). We believe that Mr. Collins’s debt for the bail bonds is not a “fine, penalty, or forfeiture” within the meaning of Section 523(a)(7). Therefore, this debt is dischargeable in bankruptcy. Bankruptcy courts that have considered the dischargeability of bail bond debts have reached different conclusions. Some courts have held that these debts are dis-chargeable in bankruptcy, finding them more akin to a contractual obligation than a “penalty” or “forfeiture.” See In re Damore, 195 B.R. 40 (Bankr.E.D.Pa.1996); In re Midkiff, 86 B.R. 239 (Bankr.D.Colo.1988); In re Paige, No. 86 B 8072 C, 1988 WL 62500 (Bankr.D.Colo. Apr. 15, 1988). Other courts have held that the debts are not dischargeable, citing concerns about the effective functioning of the bail system. See In re Scott, 106 B.R. 698, 701 (Bankr.S.D.Ala.1989) (noting that discharge would “thwart the public welfare objectives served by the" }, { "docid": "4242516", "title": "", "text": "that judgments against the sureties on bail bonds (as distinguished from “forfeitures” by the defaulting principals), such as the one at issue here are dischargeable— should not be revisited. Although no effort to rehear Hickman was mounted before its mandate issued in 2001, the Con-currer now seeks to use the instant appeal to challenge Hickman en banc by contending “[t]hat Soileau owes a forfeiture debt to a governmental entity should be disposi-tive” that the debt is nondischargeable. Contrary to the Concurrer’s position, however, Hickman’s interpretation of § 523(a)(7) is consistent with the established definitions of that section’s exclusive trio of fines, penalties, and forfeitures. From the standpoint of statutory construction, “forfeiture” in § 523(a)(7) must be understood in light of its relationship to the other nouns in that section’s exclusive list, ie., “fine” and “penalty.” According to Black’s Law Dictionary, a forfeiture is: (1) “[t]he divestiture of property without compensation,” (2) “[t]he loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty,” (3) “[sjomething (esp. money or property) lost or confiscated by this process; a penalty”, (4) “A destruction or deprivation of some estate or right because of the failure to perform some obligation or condition contained in the contract.” The American Heritage Dictionary defines a forfeiture as “the act of surrendering something as a forfeit,” then defines forfeit as “something surrendered as punishment for a crime, offense, error, or breach of contract.” Although these definitions alone might leave open the possibility that the type of judgment debt at issue here should be considered a forfeiture for purposes of § 523(a)(7), Congress’s synonym-izing use of “forfeiture” with “penalty” and “fine” supports Hickman’s more narrow interpretation of this section as applicable only to takings grounded in wrongful acts and effectuating a punishment therefor. In Hickman, we explained: A penalty is “[a]n elastic term with many different shades of meaning; it involves [the] idea of punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally confined to pecuniary punishment.” Black’s Law Dictionary 1133 (6th ed.1990). Central to the definition of penalty" }, { "docid": "21684612", "title": "", "text": "“obligations imposed upon the debtor as punishment for his wrongdoing” and that the judgment against Nam arose “because a condition of the bond was breached and not because the surety is being punished.” The District Court affirmed the Bankruptcy Court’s judgment, holding that § 523(a)(7) excepts from discharge only sanctions that are penal, as opposed to civil, in nature and that result from the debtor’s own wrongdoing. The District Court further found that Nam never assumed any independent obligation to produce David in court and, thus, that Nam committed no wrongdoing. Consequently, the court held the debt dischargeable. Moreover, the District Court enunciated a more general proposition concerning the application of § 523(a)(7): A judgment against a surety, arising from a forfeited bail bond, will be exempted from discharge under § 523(a)(7) only if the surety played some affirmative role in the defendant’s failure to appear. This appeal followed. III. JURISDICTION The Bankruptcy Court had jurisdiction under Title 11 of the United States Code, 28 U.S.C. § 1334(b), as a complaint to determine the dischargeability of a debt. The District Court had jurisdiction pursuant to 28 U.S.C. § 158(a) and we have jurisdiction of this appeal pursuant to 28 U.S.C. § 158(c) and 28 U.S.C. § 1291. We exercise plenary review over a district court’s bankruptcy decision. Commonwealth of Pa. Dept of Environmental Resources v. Tri-State Clinical Laboratories, Inc., 178 F.3d 685, 687 n. 2 (3d Cir.1999). TV. DISCUSSION A. SECTION 523(a)(7) The sole statutory provision at issue in this appeal is the exception to discharge provided by 11 U.S.C. § 523(a)(7), which states in pertinent part: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (7) to the extent such debt is for a[l] fine, penalty, or forfeiture [2] payable to and for the benefit of a governmental unit, and [3] is not compensation for actual pecuniary loss, other than a tax penalty.... 11 U.S.C. § 523(a)(7) (emendations added). In order to “determine whether [a debt] is dischargeable under § 523(a)(7), we must determine whether [such] debt meets the" }, { "docid": "20919911", "title": "", "text": "unit and is not compensation for actual pecuniary loss. 11 U.S.C. § 523(a)(7). Pioneer contends that pursuant to 11 U.S.C. § 509(a) it is subrogated to the rights of the pertinent Colorado courts to the extent that it has paid forfeitures unto such courts related to bonds written by Paige. Pioneer further maintains that under its rights of subrogation it is granted standing to bring the within action under Section 523(a)(7). Courts are split as to whether a subrogee has standing to bring such a suit. See, In re Lueking, (Kentucky Central Insurance Co. v. Lueking), 58 B.R. 472 (Bankr.E.D.Tenn.1986) (insurance company which issued reclamation of land bond on behalf of debtor and in favor of Tennessee Department of Conservation was not a “governmental unit” and therefore could not maintain an adversary proceeding pursuant to Section 523(a)(7) seeking nondischargeability of a debt arising from a fine, penalty, or forfeiture payable to and benefit of a governmental unit). See also, In re Revere Copper and Brass, Inc., 32 B.R. 725 (S.D.N.Y.1983); 2 Collier on Bankruptcy, 11101.24 (15th Ed.1985). But see, In re Caponigri, 193 F. 291 (S.D.N.Y.1912) (recovery permitted by a surety against another surety on a recognizance for bail; such an action is essentially a recovery of a penalty for forfeiture which is not dischargeable under Section 57(j) of the Bankruptcy Act of July 1, 1898). In view of the above cited split of authority, it is therefore arguable whether Pioneer has standing to bring this action. However, in view of the United States Supreme Court’s decision in Kelly v. Robinson, 479 U.S. 36 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), this Court will presume Pioneer has standing as a subrogee pursuant to Section 509(a) and will therefore address the issue whether Pioneer’s claim against Paige for indemnity for a forfeiture suffered by a surety such as Pioneer under a bail bond surety contract qualifies as a debt which is nondischargeable pursuant to Section 523(a)(7). In discussing the dischargeability of criminal pecuniary sanctions or obligations, the Kelly Court noted that such obligations had historically been excepted from the discharge provisions" }, { "docid": "12670073", "title": "", "text": "from “contractual, statutory, or common law dut[ies]”, which are not covered by the exception, from those “rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.” In re Collins, 173 F.3d at 931 (quoting Kelly, 479 U.S. at 52, 107 S.Ct. at 362). The Collins panel went on to note that this treatment was consistent with prior decisions in the Fourth Circuit that had held that court costs assessed against a criminal defendant were not dischargeable under § 523(a)(7) because such a debt operated in conjunction with the penal and sentencing goals of the criminal justice system, see In re Collins, 173 F.3d at 931-32 (discussing Thompson v. Com., 16 F.3d 576 (4th Cir.1994)). Our own analysis of the language of the § 523(a)(7) supports Collins, and we hold that the exception to discharge in § 523(a)(7) applies only to penal sanctions that result from the debtor’s wrongdoing. In examining the use of “forfeiture,” we begin with that word’s definition. Forfeiture is [a] comprehensive term which means a divestiture of specific property without compensation; it imposes a loss by the taking away of some preexisting valid right without compensation. A deprivation or destruction of a right in consequence of the nonperformance of some obligation or condition. Loss of some right or property as a penalty for some illegal act. Loss of property or money because of breach of a legal obligation .... Black’s Law Dictionary 650 (6th ed.1990) (citations omitted). As is clear from this definition, “forfeiture” is an extremely broad term, embracing both deprivations of rights resulting from a party’s wrongdoing, as in “a penalty for some illegal act”, as well as those deprivations not associated with wrongdoing as such. We therefore must interpret the meaning of “forfeiture” in this context by reference to the terms that accompany it. “Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one" }, { "docid": "21684613", "title": "", "text": "of a debt. The District Court had jurisdiction pursuant to 28 U.S.C. § 158(a) and we have jurisdiction of this appeal pursuant to 28 U.S.C. § 158(c) and 28 U.S.C. § 1291. We exercise plenary review over a district court’s bankruptcy decision. Commonwealth of Pa. Dept of Environmental Resources v. Tri-State Clinical Laboratories, Inc., 178 F.3d 685, 687 n. 2 (3d Cir.1999). TV. DISCUSSION A. SECTION 523(a)(7) The sole statutory provision at issue in this appeal is the exception to discharge provided by 11 U.S.C. § 523(a)(7), which states in pertinent part: (a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (7) to the extent such debt is for a[l] fine, penalty, or forfeiture [2] payable to and for the benefit of a governmental unit, and [3] is not compensation for actual pecuniary loss, other than a tax penalty.... 11 U.S.C. § 523(a)(7) (emendations added). In order to “determine whether [a debt] is dischargeable under § 523(a)(7), we must determine whether [such] debt meets the three requirements of the section.” In re Rashid, 210 F.3d 201, 206 (3d Cir.2000). Here, the parties do not dispute that Nam’s debt is payable to and for the benefit of a governmental unit (either or both the Commonwealth of Pennsylvania and the City of Philadelphia) or that the $1 million bail bond debt is not compensation for any pecuniary loss by such governmen tal entities or any other party. Consequently, we need only concern ourselves with the construction of the first prong of § 523(a)(7): the “fine, penalty or forfeiture” provision. The City argues that Nam’s debt is a “forfeiture” of the bond amount arising from David’s failure to appear and, therefore, falls within the plain language of the statute. Nam on the other hand contends that the statute only creates an exception for “penal” debts, a category into which Nam’s debt assertedly does not fall. Following the teaching of the Supreme Court, we have held that the “starting point of any statutory analysis is the language of the statute itself.” Commonwealth of Pa." }, { "docid": "4242532", "title": "", "text": "932 (4th Cir.1999) (quoting In re Paige, No. 86 B 8072 C, 1988 WL 62500, *4 (Bankr.D.Colo. Apr.15, 1988)). . Kelly v. Robinson, 479 U.S. 36, 47, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). EDITH H. JONES, Chief Judge, specially concurring: I concur in the judgment only. With due respect to the majority, Hood and Katz may dispose of any Eleventh Amendment sovereign immunity claim that Texas could raise here, but those cases do not resolve whether the Bankruptcy Code in fact authorizes the discharge of Soileau’s defaulted bail bonds. Currently, this court’s precedent equates default on bail bonds with any other contractual obligation and holds such debts dischargeable. Hickman v. Texas (In re Hickman), 260 F.3d 400, 406 (5th Cir.2001). The State has consistently argued, however, and I agree that Hickman was wrongly decided. While this panel is bound to apply Hickman and reject the State’s nondischarge-ability claim, I urge the court to rehear this case en banc and overturn Hickman. Standing alone, the Bankruptcy Code appears to render Soileau’s debt for bond forfeitures nondischargeable. Section 523(a)(7) of the Code states that a debt is nondischargeable “to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty.” 11 U.S.C. § 523(a)(7) (emphasis added). The panel in Hickman interpreted this language to mean that only “punitive or penal forfeiture[s]” were nondischargeable, and that bail bond forfeitures, which it erroneously interpreted as contractual in nature, were not covered by § 523(a)(7). Id. at 406. A better approach to § 523(a)(7) was taken by a Third Circuit panel (including now-Justice Alito) that held commercial bail bond forfeitures nondischargeable within the plain meaning of § 523(a)(7). Dobrek v. Phelan, 419 F.3d 259 (3d Cir. 2005). As Dobrek correctly points out, regardless whether bail bonds are contractual in nature, there is no basis for Hickman’s holding that § 523(a)(7) “is restricted in scope to exempt from dis-chargeability only obligations of a [purely] penal nature,” as “forfeitures” are included in §" }, { "docid": "12670074", "title": "", "text": "we begin with that word’s definition. Forfeiture is [a] comprehensive term which means a divestiture of specific property without compensation; it imposes a loss by the taking away of some preexisting valid right without compensation. A deprivation or destruction of a right in consequence of the nonperformance of some obligation or condition. Loss of some right or property as a penalty for some illegal act. Loss of property or money because of breach of a legal obligation .... Black’s Law Dictionary 650 (6th ed.1990) (citations omitted). As is clear from this definition, “forfeiture” is an extremely broad term, embracing both deprivations of rights resulting from a party’s wrongdoing, as in “a penalty for some illegal act”, as well as those deprivations not associated with wrongdoing as such. We therefore must interpret the meaning of “forfeiture” in this context by reference to the terms that accompany it. “Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration,” Norfolk & Western Rwy. Co. v. American Train Dispatchers Ass’n, 499 U.S. 117, 129, 111 S.Ct. 1156, 1163, 113 L.Ed.2d 95 (1991). “Similarly, the canon of construction noscitur a sociis instructs that a provision should not be viewed in isolation but in light of the words that accompany it and give [it] meaning.” Folger Adam Sec., Inc. v. De-Matteis/MacGregor JV, 209 F.3d 252, 258 (3d Cir.2000) (internal quotation marks omitted). With respect to this latter canon, the Supreme Court has stated that “The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to Acts of Congress,” Folger Adam Sec., 209 F.3d at 258 (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961)). Further, our statutory interpretation is also guided by the “familiar principle!] that words grouped in a list should be" }, { "docid": "22032800", "title": "", "text": "subsection of the Bankruptcy Code declares a debt nondischargeable “... to the extent such debt is for a fine, penalty or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” However, Plaintiff has cited Scott v. State of Alabama (In re Scott), 106 B.R. 698 (Bankr.S.D.Ala.1989). Scott involved a debtor who acted as surety on a criminal bail bond which was forfeited when the defendant in the underlying criminal proceeding failed to appear. After the bail bond was forfeited, the State proceeded to garnish the debtor’s wages to collect on the forfeited bail bond. The court in Scott held that the garnishment of the debtor’s wages was exempt from the automatic stay by virtue of 11 U.S.C. § 362(b)(4) as “an action by a governmental unit to enforce such governmental unit’s police or regulatory power.” The Scott Court also found, without discussion or citation of caselaw, that Section 523(a)(7) rendered the debtor’s obligation to the State on the forfeited bail bond nondis-chargeable. Our independent research has discovered two cases which hold that a debt owed by a debtor based upon a bail bond forfeiture is dischargeable under Section 523(a)(7) so long as the debtor was not the defendant who failed to appear in the criminal proceeding. The first case, Pioneer Gen’l. Ins. Co. v. Paige (In re Paige), Adv. No. 87 E 194, Case No. 86 B 8072 C, 1988 WL 62500 (Bankr.D.Colo.1988), contains an analysis of the Section 523(a)(7) issue. The second case, Pioneer Gen’l. Ins. Co. v. Midkiff (In re Midkiff), 86 B.R. 239 (Bankr.D.Colo.1988), does not independently analyze the Section 523(a)(7) issue but rather adopts the reasoning of Paige and attaches the opinion in Paige as “Appendix A” to its decision. Accordingly, we will focus our discussion primarily on Paige. The debtors in Paige and Midkiff were professional bail bondsmen who worked as agents for Pioneer General Insurance Company or its predecessor. The agreements between the debtors and Pioneer (or its predecessor) provided that the debtors would indemnify the company for any losses arising from the forfeiture" }, { "docid": "21684614", "title": "", "text": "three requirements of the section.” In re Rashid, 210 F.3d 201, 206 (3d Cir.2000). Here, the parties do not dispute that Nam’s debt is payable to and for the benefit of a governmental unit (either or both the Commonwealth of Pennsylvania and the City of Philadelphia) or that the $1 million bail bond debt is not compensation for any pecuniary loss by such governmen tal entities or any other party. Consequently, we need only concern ourselves with the construction of the first prong of § 523(a)(7): the “fine, penalty or forfeiture” provision. The City argues that Nam’s debt is a “forfeiture” of the bond amount arising from David’s failure to appear and, therefore, falls within the plain language of the statute. Nam on the other hand contends that the statute only creates an exception for “penal” debts, a category into which Nam’s debt assertedly does not fall. Following the teaching of the Supreme Court, we have held that the “starting point of any statutory analysis is the language of the statute itself.” Commonwealth of Pa. Dept. of Environmental Resources v. Tri-State Clinical Laboratories, Inc., 178 F.3d 685, 688 (3d Cir.1999), citing Pa. Dept. of Pub. Welfare v. Davenport, 495 U.S. 552, 557-58, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990); Kelly v. Robinson, 479 U.S. 36, 43, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). Consequently, our analysis of the “fine, penalty or forfeiture” prong of § 523(a)(7) must begin with the plain language of the statute. On its face, the judgment against Nam seems to come within the plain meaning of the term “forfeiture.” For example, “forfeiture” is defined in Black’s Law Dictionary as “a divestiture of specific property without compensation; ... [a] deprivation or destruction of a right in consequence of the nonperformance of some obligation or condition.” Blaok’s Law Diotionaey 650 (6th Ed. 1990). “Forfeiture” is defined by Webster’s Dictionary as “the divesting of the ownership of particular property of a person on account of the breach of a legal duty and without any compensation to him: the loss of property or money on account of one’s breach of" } ]

[ { "docid": "12088326", "title": "", "text": "U.S. at 577, 92 S.Ct. at 2709. Thus, the issue before us is whether state law or any other source confers upon a limited licensee an expectation of entitlement to continued licensing that would give rise to a property interest protected by the federal Constitution. “A reasonable expectation of entitlement is determined largely by the language of the statute and the extent to which the entitlement is couched in mandatory terms.” Association of Orange County Deputy Sheriffs v. Gates, 716 F.2d 733, 734 (9th Cir.1983), cert. denied sub nom. Singer v. Gates, 466 U.S. 937, 104 S.Ct. 1909, 80 L.Ed.2d 458 (1984). The district court determined that plaintiffs stood in the shoes of first time applicants as of the date their limited licenses expired. Relying on Jacobson v. Hannifin, 627 F.2d 177, 179 (9th Cir.1980), in which we held that a first time applicant has no protected property interest in a new gaming license, the district court concluded that plaintiffs had no constitutional or statutory right to further licensing. Plaintiffs make two arguments that the district court erred in holding they had no expectation of entitlement to continued licensing. First, plaintiffs assert that they were licensed and in active business at the time their limited licenses were reviewed and thus the refusal to extend any further licensing to them was more a revocation of existing licenses than a denial of new licensing. As holders of existing gaming licenses, they contend that they had a sufficient property interest to warrant procedural due process protection upon revocation of the licenses. We need not decide whether there is a state-created property interest in an existing gaming license that would be protected by the federal Constitution. A close look at the statutory scheme governing licensing and the specific purposes behind issuance of a limited license instead of a permanent license reveals that the decision to deny further licensing did not operate as a revocation or suspension of an existing license. Rather, it is clear as a matter of statutory interpretation that plaintiffs stood in the shoes of first time applicants when they appeared before" } ]

[ { "docid": "4263169", "title": "", "text": "such permit.” Ga.Code Ann. § 58-1038.2 (Supp. 1974). Irrespective of the continuing vitality of the “right-privilege” approach in judging the sufficiency of a person’s entitlement to issuance or renewal of a liquor license, this court doubts that the Georgia courts would continue to adhere to this distinction in judging the sufficiency of a license revocation proceeding. Cf. Page v. City of Hapeville, supra. The traditional approach to liquor license questions in Georgia was significantly altered by the seminal case of Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964); and both parties have asserted vigorous arguments with respect to their views concerning the continuing vitality of this ease. On review of these arguments, and the relevant case authority, this court has concluded that the Horns-by ruling, like the rulings predicated upon the outmoded “right-privilege” approach, has been significantly eroded by more recent decisions dealing with the authority of the states to adopt regulations in the area of the public welfare and employment. E. g., California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Perry v. Sinderman, 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). On the other hand, this court has also concluded that the continuing vitality of the Hornsby opinion is in effect irrelevant to the question presented in the instant action, which concerns revocation of a license rather than renewal or issuance of the license in the first instance. Relying on the Georgia courts’ characterization of a liquor license as a mere privilege and upon the Supreme Court’s rulings in Perry v. Sinderman, supra and Board of Regents v. Roth, supra, defendants contend that plaintiff has an insufficient property interest in his liquor license to warrant due process protection. Sinderman and Roth are the leading cases discussing the types of property and liberty interests entitled to due process protection. As noted above, questions regarding deprivation of plaintiff’s liberty interest are not before the court. With respect to property interests, the Roth Court held as follows: Property interests," }, { "docid": "15166748", "title": "", "text": "the meaning of the fourteenth amendment. In support of this position, Joyce cites a string of Illinois eases which state that under Illinois law a liquor license is a “privilege,” not a “property right.” See Memorandum in Support of Joyce’s Motion for Summary Judgment at 1. The Seventh Circuit, however, in Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.1983) stated that such labels are not conclusive for purposes of fourteenth amendment analysis. In Reed, the court held that a liquor licensee had a property interest when his license was up for renewal as well as in instances of revocation. See Reed v. Village of Shorewood, 704 F.2d 943, 949 (7th Cir.1983). But the court in Reed did not address the question of whether an applicant for a liquor license has a property interest for purposes of the fourteenth amendment. After careful consideration of Reed and local law, the court concludes that an applicant does have such a property interest. Prior to Reed, Illinois courts had uniformly held that an applicant for a liquor license does not have a constitutionally-protected right to sell liquor. See, e.g., Jacobsen v. State of Illinois Liquor Control, 97 Ill.App.3d 700, 53 Ill.Dec. 147, 149, 423 N.E.2d 531, 533 (2d Dist.1981). The first issue this court must resolve is whether Reed expanded the notion of “property” to include an applicant’s interest in initially obtaining a liquor license. The court concludes it did not. In Reed, the court concluded that the express language of Illinois Revised Statute ch. 43, ¶1¶ 149, 153 (1981) provides that a licensee has full due process rights in cases of license revocation. See Reed, 704 F.2d at 948. But unless the court found due process to be applicable to cases of renewal, the liquor control commission could avoid the due process protections for revocation simply by summarily denying an application for renewal after the license expired. Id. at 949. Since the criteria for renewal are undemanding under Illinois Revised Statute ch. 43, ¶ 119 (1982), the Reed court indicated that the Illinois legislature expected most licenses to be renewed" }, { "docid": "12517194", "title": "", "text": "the term of the contract has expired. To conclude otherwise would render § 23.28 meaningless in terms of its definition of a fixed term employment contract, because such a conclusion would make a fixed term contract the equivalent of an at-will employment contract. The Frazier, Bradley, and Alexander teaching contracts are remarkably similar — each provides explicitly that the contract does not create any property interest in continued employment beyond the contract term, implying that during the term of the contract, a protected property interest exists. We conclude that a teacher employed under the terms of a fixed term contract as defined by Tex.Educ.Code Ann. § 23.28 has a constitutionally protected property interest in employment until the term of the contract has expired. See United States ¶. LULAC, 793 F.2d 636 (5th Cir.1986); 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). Having concluded that the Teachers have a property interest in employment, we next consider whether the procedures afforded the Teachers were constitutionally adequate. In the case at hand, the district court held that the procedures involved in the administration of the TECAT and subsequent decertification resulting from the failure of the test provided adequate protection of the Teachers’ due process rights. Specifically, the district court found that the Teachers were given more than one opportunity to pass the TECAT and, further, there were procedures in place that afforded the Teachers the opportunity to appeal the revocation of their certification to the Texas commissioner of education, and the right to judicial review of that administrative proceeding in a state district court. The Texas Supreme Court addressed this issue directly in State v. Project Principle, 724 S.W.2d 387, 389 (Tex.1987), when the Court held that the right to appeal the revocation of their teaching licenses after the teachers had failed the TECAT, and the right to judicial review of that action were sufficient to satisfy the procedural due process guarantees of the Fourteenth Amendment. Id. at 391. Although we are not" }, { "docid": "15676769", "title": "", "text": "jurisdiction over Goose Island’s unconstitutional conditions claim, the Court must first examine the validity of the constitutional right asserted. Goose Island appears to assert that its right to due process was infringed because the city attempted to force it to relinquish that right by withholding certain government benefits. As this Court has previously recognized, while the unconstitutional conditions doctrine has been most consistently applied to protect First Amendment rights, it has also been applied by the Supreme Court to other constitutional provisions, including the Takings Clause. Woodard v. Ohio Adult Parole Authority, 107 F.3d 1178, 1190 (6th Cir.1997) (citations omitted), rev’d on other grounds, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998). The doctrine should equally apply to prohibit the government from conditioning benefits on a citizen’s agreement to surrender due process rights. See, e.g., Vance v. Barrett, 345 F.3d 1083, 1089 (9th Cir.2003)(applying the unconstitutional conditions doctrine to protect rights to due process). In order to assert a valid due process claim, however, a plaintiff must establish that the interest asserted is a liberty or property interest protected under the Fourteenth Amendment. Wojcik v. City of Romulus, 257 F.3d 600, 609 (6th Cir.2001). Goose Island argues that it had a protected property right in its liquor license which included the right to certain hours of operation. In Wojcik, this Court recognized that “Michigan courts have held that the holder of a liquor license has a constitutionally protected interest and is therefore entitled to proper proceedings prior to making decisions regarding renewal or revocation.” Id. at 609-10 (citing Bisco’s, Inc. v. Michigan Liquor Control of Comm’n, 395 Mich. 706, 238 N.W.2d 166, 167 (1976)). The issue before this Court, however, is whether Goose Island had a property interest in certain hours of operation. In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court explained that “[t]o 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," }, { "docid": "22821841", "title": "", "text": "may seem inescapable that these plaintiffs had no Fourteenth Amendment property right in their liquor license. But it is not,, even if one takes literally the proposition that property, unlike life and liberty, comes from government. “Property” in the Illinois Liquor Control Act need not mean the same thing as “property” in the due process clause. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the companion case to Roth, held that a teacher’s tenure contract creates a species of property, though it would not be so described under state law. And the rights of welfare recipients, though also not property in the conventional sense, were held in Goldberg v. Kelly, 397 U.S. 254, 261-62, 90 S.Ct. 1011, 1016-1017, 25 L.Ed.2d 287 (1970), to be property for purposes of the due process clause. Liquor licenses in Illinois cannot be sold or bequeathed and are limited in other ways that deprive them of some of the conventional attributes of property, but this does not mean they are not property in a due process clause sense. The statement that a liquor license is not property may have been intended just to emphasize these limitations, which appear in section 1 of the Liquor Control Act right after the statement. So we must look behind labels, cf. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 448 (2d Cir.1980); Winkler v. County of De Kalb, 648 F.2d 411, 414 (5th Cir.1981), and decide whether the plaintiffs’ license was “property” in a functional sense. Since, viewed functionally, property is what is securely and durably yours under state (or as in Goldberg federal) law, as distinct from what you hold subject to so many conditions as to make your interest meager, transitory, or uncertain, we must ask whether under Illinois law a liquor license is securely and durably the licensee’s. The license is good for one year and during that time, clearly, it is securely held, for it can be revoked only for cause, after notice and hearing, and subject to judicial review. See Ill.Rev.Stat.1981, ch. 43, ¶¶ 149, 153. These are" }, { "docid": "7599285", "title": "", "text": "of due process analysis by Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Roth provides the inspiration for the syllogism that the appellants press on us: a liquor license is a species of property within the meaning of the due process clause of the Fourteenth Amendment; they were deprived of this property by a referendum, which, as a naked appeal to majority rule, is the antithesis of a due process hearing; therefore their rights under the Fourteenth Amendment were violated. We agree that there was a deprivation. In contrast to cases such as Brown v. Brienen, 722 F.2d 360, 366 (7th Cir.1983), where the existence of a state-court remedy for the injury of which the plaintiffs complained made it problematic whether there had been a deprivation within the meaning of the Fourteenth Amendment, the plaintiffs here have no remedy under state law for what has been done to them (assuming the referenda were not conducted in a fraudulent or otherwise unlawful manner), except to campaign for repeal in four years. But whether the deprivation was of property depends not only on whether an Illinois liquor license is property within the meaning of the Fourteenth Amendment, as held in Reed v. Village of Shorewood, supra, 704 F.2d at 948-49 (we shall not have to decide whether an approved application, as in No. 83-1946, creates a property right even before a license is issued), but also on the precise dimensions of the right. The defendants in Reed by a pattern of harassment drove the plaintiffs to give up their liquor license before its expiration. The present case concerns the date of expiration. Every liquor license in Illinois has a variable expiration date: either the date stamped on the license or the date on which the licensee is required to surrender the license because the precinct where the licensed premises are located has voted to go dry — whichever is earlier. Just as a tenant is not deprived of a property right when he is ejected from the premises at the expiration of his lease, so" }, { "docid": "1306712", "title": "", "text": "followed by another unsatisfactory report from Mr. Griffin, under date of June 11, 1980. On June 25, 1980 a conference was held with plaintiff regarding this letter, where he was again informed that while serving in a school as a day-to-day substitute teacher, he was under the jurisdiction of the local school principal. Our lengthy review of the evidence which was before the trial court fully supports the finding that plaintiff was not a competent substitute teacher and this was why the Board did not renew his license. Likewise, the evidence did not support, “in any degree,” plaintiffs claim of unlawful discrimination, or retaliation against him because he had filed an EEOC charge. Plaintiff contends that he possessed a property interest in his teaching certificate which was protected by the Fourteenth Amendment, and that he was deprived of his right to due process because the Board refused to renew his certificate without notice or an opportunity for hearing. Here, it is clear that plaintiff was a non-tenured, temporarily employed teacher. Under Illinois law, only tenured teachers are entitled to notice and hearing pending dismissal, and plaintiff’s expectation of employment was governed by his one-year temporary certificate. The union contract provided that the services of an unsatisfactory temporarily certificated teacher could not be terminated “until he has been given an unsatisfactory rating by at least two principals.” There were no agreements between plaintiff and the Board that his temporary teaching certificates would be issued on a continuing basis. Each certificate was limited to a one year term, and was not subject to automatic renewal. Under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and our decisions in McElearney v. University of Illinois, 612 F.2d 285 (7th Cir.1979); Smith v. Board of Education, 708 F.2d 258 (7th Cir.1983); and Eichman v. Indiana State University Board of Trustees, 597 F.2d 1104 (7th Cir.1979) plaintiff had no property interest in a temporary teaching certificate. Contrary to the situation found in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), there was no evidence" }, { "docid": "15166747", "title": "", "text": "3099, 3106, 87 L.Ed.2d 114 (1985). Joyce argues that the evidence does not support the plaintiff’s equal protection claim. Joyce attacks the equal protection claim on the grounds that the plaintiff has failed to establish the requisite nexus between Joyce’s acts and the police harassment. Joyce maintains no competent evidence exists to support the allegation that Joyce directed the police to harass the plaintiff and his customers. The court agrees. Since Joyce has discharged his burden on this motion with regard to the equal protection claim by showing the absence of a genuine issue of material fact, see Celotex, 106 S.Ct. at 2554, and since the plaintiff has failed to introduce any evidence in response to this motion, the court grants Joyce summary judgment on the equal protection claim. With regard to the due process claim, Joyce argues that the plaintiff could not have been deprived of due process when his liquor-license application for The Keyes was delayed because the plaintiff’s interest in initially obtaining a liquor license was not a protectable property interest within the meaning of the fourteenth amendment. In support of this position, Joyce cites a string of Illinois eases which state that under Illinois law a liquor license is a “privilege,” not a “property right.” See Memorandum in Support of Joyce’s Motion for Summary Judgment at 1. The Seventh Circuit, however, in Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.1983) stated that such labels are not conclusive for purposes of fourteenth amendment analysis. In Reed, the court held that a liquor licensee had a property interest when his license was up for renewal as well as in instances of revocation. See Reed v. Village of Shorewood, 704 F.2d 943, 949 (7th Cir.1983). But the court in Reed did not address the question of whether an applicant for a liquor license has a property interest for purposes of the fourteenth amendment. After careful consideration of Reed and local law, the court concludes that an applicant does have such a property interest. Prior to Reed, Illinois courts had uniformly held that an applicant for a" }, { "docid": "9334416", "title": "", "text": "and 4303.273 (Anderson 1988) and Ohio Admin. Code § 4301:1-1-14. It is undeniable that a liquor license has pecuniary value to its holder since the license enables the holder to sell alcoholic beverages and can be sold for value. Since the state has vested the owner of a liquor license with these beneficial interests, a liquor license constitutes “property” or “rights to property” within the meaning of federal tax lien law. Id., 911 F.2d at 1171 (footnote omitted). In addition to the rights to transfer, sell, bequeath, and renew, a holder of an Ohio liquor license also has the right to a hearing before revocation and the right to appeal any adverse determination of the Department. Ohio Rev.Code §§ 4301.27, 4301.28. In Reed, the Seventh Circuit held that an Illinois liquor license was property within the meaning of the Due Process Clause even though it could not be sold or bequeathed. 704 F.2d at 948. The court found that the Illinois license was property because the holder had a right of renewal and the license could be securely held for its term unless there was cause for revocation. Id. While the Ohio revocation provision does not state that a license can be revoked only for cause, the notice, hearing, and appeal provisions would be pointless unless the legislature intended there to be some reason for revocation. Since an Ohio license can be sold and bequeathed, it has even more of the attributes of property than the Illinois license at issue in Reed. The defendants rely on a series of Ohio cases to support their contention that a liquor license is not property. In State ex rel. Zugravu v. O’Brien, 130 Ohio St. 23, 196 N.E. 664 (1935), the Ohio Supreme Court concluded that a liquor licensee had no property interest because the legislature could terminate the license. Id., 196 N.E. at 666. In Abraham v. Fioramonte, 158 Ohio St. 213, 107 N.E.2d 321 (1952), the court relied on the fact that a license at that time could not be sold to conclude that it was not property. Id., 107 N.E.2d" }, { "docid": "15166749", "title": "", "text": "liquor license does not have a constitutionally-protected right to sell liquor. See, e.g., Jacobsen v. State of Illinois Liquor Control, 97 Ill.App.3d 700, 53 Ill.Dec. 147, 149, 423 N.E.2d 531, 533 (2d Dist.1981). The first issue this court must resolve is whether Reed expanded the notion of “property” to include an applicant’s interest in initially obtaining a liquor license. The court concludes it did not. In Reed, the court concluded that the express language of Illinois Revised Statute ch. 43, ¶1¶ 149, 153 (1981) provides that a licensee has full due process rights in cases of license revocation. See Reed, 704 F.2d at 948. But unless the court found due process to be applicable to cases of renewal, the liquor control commission could avoid the due process protections for revocation simply by summarily denying an application for renewal after the license expired. Id. at 949. Since the criteria for renewal are undemanding under Illinois Revised Statute ch. 43, ¶ 119 (1982), the Reed court indicated that the Illinois legislature expected most licenses to be renewed as a matter of course. Id. at 948-49. Citing City of Wyoming v. Liquor Control Comm’n of Illinois, 48 Ill.App.3d 404, 409, 6 Ill.Dec. 258, 262, 362 N.E.2d 1080, 1084 (3d Dist.1977), the Reed court interpreted the term “revocation” in ¶ 149 to include the refusal to issue a renewal license. Id. at 949. The logic of Reed does not extend to the interest of an applicant not already in possession of a particular liquor license. The Reed court was simply trying to insure that the procedural protection for revocation could not be circumvented by waiting until the license expired. See id. Consequently, the court concludes that Reed is inapplicable to this case. The court is thus confronted with a question of first impression, i.e., whether an applicant for a liquor license in Chicago, Illinois has a property right for purposes of the fourteenth amendment. The guidelines for determining whether a property interest exists were set forth by the Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d" }, { "docid": "22821842", "title": "", "text": "process clause sense. The statement that a liquor license is not property may have been intended just to emphasize these limitations, which appear in section 1 of the Liquor Control Act right after the statement. So we must look behind labels, cf. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 448 (2d Cir.1980); Winkler v. County of De Kalb, 648 F.2d 411, 414 (5th Cir.1981), and decide whether the plaintiffs’ license was “property” in a functional sense. Since, viewed functionally, property is what is securely and durably yours under state (or as in Goldberg federal) law, as distinct from what you hold subject to so many conditions as to make your interest meager, transitory, or uncertain, we must ask whether under Illinois law a liquor license is securely and durably the licensee’s. The license is good for one year and during that time, clearly, it is securely held, for it can be revoked only for cause, after notice and hearing, and subject to judicial review. See Ill.Rev.Stat.1981, ch. 43, ¶¶ 149, 153. These are the same conditions under which a teacher’s tenure, a form of property under the Fourteenth Amendment, can be revoked. Although the Liquor Control Act does not prescribe equivalent protections for nonrenewal, it does provide (again in section 1) that “any licensee may renew his license at the expiration thereof, provided he is then qualified to receive a license and the premises for which such renewal license is sought are suitable for such purposes .... ” These criteria for renewal are undemanding, which suggests that the Illinois legislature expected most licenses to be renewed as a matter of course. From here it is only a step to equating nonrenewal with revocation and requiring the same safeguards against arbitrary nonrenewal as the statute expressly provides against arbitrary revocation. That step was taken in City of Wyoming v. Liquor Control Comm’n of Illinois, 48 Ill.App.3d 404, 409, 6 Ill.Dec. 258, 262, 362 N.E.2d 1080, 1084 (1977): “it could not have been the legislative intent that a local liquor control commissioner be able to easily avoid the application of" }, { "docid": "6275297", "title": "", "text": "action or an area so .inherently discretionary that some form of hearing would interfere with this discretion. I further believe that society and the local citizenry have a basic interest in the regularity and fairness of local administrative proceedings. Society has an interest in insuring that liquor licenses are not revoked for reasons not made known to the parties involved, or on the basis of erroneous information. Confidence in local government is so important in a democracy that I do not think it unduly harsh to require local licensing bodies in these matters to respect the minimal dictates of procedural due process. Returning, therefore, to the question of what interests of the plaintiff are at stake and what he must show to counterweight the interest of the municipality in these matters, I rely on my previous discussion of his “property” interests. Such “property” interest as I found is not enough to entitle plaintiff to a renewal of his liquor license. Perry v. Sindermann, 408 U.S. 593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Such interest is enough, when coupled with society’s interest, to entitle the plaintiff to the minimal standards of procedural due process. What are these minimal standards and did the City of Green Bay satisfy these standards in the quasi-judicial hearing which was afforded the plaintiff? This court, sitting as a three-judge panel, has previously defined the framework of the hearing which is to be afforded tavern owners in similar cases involving revocation of liquor licenses. In Misurelli v. City of Racine, 346 F. Supp. 43, 47, 49-50 (D.C., 1972), overruled on other grounds in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), we specified the following minimal requirements: the municipality must provide the tavern owner or licensee with (1) notice of the charges upon which denial of the liquor license is predicated, (2) an opportunity to respond to and challenge such charges, (3) an opportunity to present witnesses under oath, (4) an opportunity to confront and cross-examine opposing witnesses under oath, and (5) the opportunity to have a verbatim," }, { "docid": "15166750", "title": "", "text": "as a matter of course. Id. at 948-49. Citing City of Wyoming v. Liquor Control Comm’n of Illinois, 48 Ill.App.3d 404, 409, 6 Ill.Dec. 258, 262, 362 N.E.2d 1080, 1084 (3d Dist.1977), the Reed court interpreted the term “revocation” in ¶ 149 to include the refusal to issue a renewal license. Id. at 949. The logic of Reed does not extend to the interest of an applicant not already in possession of a particular liquor license. The Reed court was simply trying to insure that the procedural protection for revocation could not be circumvented by waiting until the license expired. See id. Consequently, the court concludes that Reed is inapplicable to this case. The court is thus confronted with a question of first impression, i.e., whether an applicant for a liquor license in Chicago, Illinois has a property right for purposes of the fourteenth amendment. The guidelines for determining whether a property interest exists were set forth by the Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), where the 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____ 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 v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Thus, the sufficiency of the plaintiff’s claim of entitlement must be examined in light of state and local law to determine if there are rules or mutually explicit understandings in support of the plaintiff’s assertion that he had a property right as an applicant for a liquor license. See Rehbock v. Dixon, 458 F.Supp. 1056, 1061 (N.D.Ill.1978) (Leighton," }, { "docid": "13734920", "title": "", "text": "he can prove that the repeal was unlawful, he can complain about the revocation as well, for if his license had not been revoked the repeal would not have affected him. The repeal and revocation were the joint causes of his injury. If both were wrongful, the defendants are liable. If only one was wrongful, they are not liable, for in that case the plaintiff would have suffered the same loss even if there had been no wrongdoing, and thus he could not prove a wrongful injury, as he must in order to prevail. To show that the revocation and repeal together, by taking away Baer’s right to sell guns in Wauwatosa, violated the due process clause of the Fourteenth Amendment, Baer must first establish that he was deprived of property, which may for these purposes be defined as what you hold securely as a result of state or federal law. Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.1983). A license to operate a business is therefore property if it cannot be taken away from the holder before the end of a definite period without proof of misconduct on his part, so that if he keeps out of trouble he knows he can hold on to the license for that period. See id. at 948-49; Golden State Transit Corp. v. City of Los Angeles, 686 F.2d 758, 760-61 (9th Cir. 1982); Herz v. Degnan, 648 F.2d 201, 208-09 (3d Cir.1981); Medina v. Rudman, 545 F.2d 244, 250 (1st Cir.1976) (dictum); cf. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). One may wonder how a rational person could think that a gun license issued by the city clerk of Wauwatosa conferred a secure right to engage in the gun business, even during the term of the license, when the ordinances place no limitations on the revocation of a gun license. Nor is there any suggestion that some other source of law, state or local, would prevent revocation without good cause. (Wis.Stat.1977, §§ 68.-01 et seq., dealing with municipal administrative" }, { "docid": "13478155", "title": "", "text": "Although Mid-American may well be right that the City interfered with its leasehold and air rights, the court held, these are mere contract rights. Only contracts creating a protected status establish the sort of “property” with which the due process clauses of the fifth and fourteenth amendments are concerned. Both sides have appealed: Mid-American insists that the contract establishes full-blooded “property,” and defendants ask us to vacate the fines. We start with Mid-American’s arguments. Mid-American reminds us that many of this circuit’s eases define “property” by reference to a formula such as: property is whatever is “securely and durably yours ... as distinct from what you hold subject to so many conditions as to make your interest meager, transitory, or uncertain”. Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.1983). See also, e.g., Wallace v. Robinson, 940 F.2d 243, 246-47 (7th Cir.1991) (en banc). If you have a legal entitlement, you have “property.” O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 788 n. 21, 100 S.Ct. 2467, 2477, 65 L.Ed.2d 506 (1980); Upadhya v. Langenberg, 834 F.2d 661, 665 (7th Cir.1987). If not, not. Perry v. Sindermann, 408 U.S. 593, 602 n. 7, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972); Miller v. Crystal Lake Park District, 47 F.3d 865 (7th Cir.1995). These are among the many efforts to implement the conclusion of Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), that “property” depends on “a legitimate claim of entitlement”, a formula that leads us to the terms of state laws and regulations—and contracts. Many contracts establish “legitimate claims of entitlement.” How could they not? Courts routinely enforce them, awarding damages against those who go back on their word. The Constitution itself protects them; Art. I § 10 cl. 1 provides that “[n]o State shall ... pass any ... Law impairing the Obligation of Contracts”. If the state confiscates a leasehold interest, it must pay “just compensation” under the takings clause of the fifth amendment—a provision that has been applied to the states through the due process clause" }, { "docid": "22821844", "title": "", "text": "the statutory procedural requirements to license revocation by waiting for the license to expire and then refuse to issue a renewal license. For that reason, we interpret the term ‘revocation’ [in section 5 of the Liquor Control Act] to include the refusal to issue a renewal license.” The plaintiffs allege that the defendants “wait[ed] for the license to expire and then refuse[d] to issue a renewal license,” and if true this entitled them under City of Wyoming to all the protections, procedural and substantive, of the revocation process, thus making their interest in renewal a property right for purposes of the Fourteenth Amendment. Cf. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 1-12, 98 S.Ct. 1554, 1554-1561, 56 L.Ed.2d 30 (1978). This is so even though section 1 provides that renewal is not a “vested right” but a “privilege” that shall not prevent the local liquor control commissioner “from decreasing the number of licenses to be issued .... ” If the number is reduced just to eliminate a particular licensee, which is what the plaintiffs allege was done here, the principle of City of Wyoming — that you may not do indirectly by nonrenewal what you could not do directly by revocation— comes into play. Otherwise City of Wyoming would be a dead letter. We must consider next whether the defendants could be found to have deprived the plaintiffs of their property rights. The defendants never succeeded in taking away the plaintiffs’ license either by revocation or nonrenewal; their efforts to do so were thwarted by the Illinois Liquor Control Commission; and though the brief suspensions were deprivations, see North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606, 95 S.Ct. 719, 722, 42 L.Ed.2d 751 (1975), they were not denials of due process. But “deprive” in the due process clause cannot just mean “destroy.” If the state prevents you from entering your house it deprives you of your property right even if the fee simple remains securely yours. A property right is not bare title, but the right of exclusive use and enjoyment. So if" }, { "docid": "130365", "title": "", "text": "parking lots to any private persons. Since the City had discretion to award the leases to a competitor of plaintiff, plaintiff had no property subject to Fourteenth Amendment protection. Roth, 408 U.S. at 578, 92 S.Ct. at 2709 (profes sor’s employment contract silent on issue of reemployment does not create entitlement absent state statute or University rule securing interest in same); Scott v. Village of Kewaskum, 786 F.2d 338, 339-340 (7th Cir.1986) (to the extent an interest appeals to discretion rather than rules, there is no property). In some circumstances, a failure to renew a contract can amount to a deprivation of property. In Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.1983), this Court held that a person had a due process right not to be deprived of the renewal of his or her Illinois liquor license. Our holding with respect to Downtown Auto Parks’ leases is not inconsistent with Reed. The principle is the same and requires the separation of “what is securely and durably yours under state * * * law” from “what you hold subject to so many conditions as to make your interest meager.” Reed, 704 F.2d at 948. In Reed, the requirements for a liquor license, as set by state laws, were so undemanding as to suggest that “the legislature expected most licenses to be renewed as a matter of course.” Id. There is no comparable suggestion in Section 66.079 that applicants will be safeguarded from arbitrary non-renewal. Plaintiff thus had no protected property interest in renewal of the parking lot leases. Plaintiff argues that “at the very least there was an implied in fact agreement between Downtown Auto Parks and the City for an extension” (Pl.Br. 19). See Perry, 408 U.S. at 601-602, 92 S.Ct. at 2699-2700 (contract implied under state law can create protected property interest even in absence of written contract). Plaintiff points to promises made by City employees and the recommendation of renewal made by the Parking Commission as actions by which the City indicated it was willing to be bound. Plaintiffs implied contract argument fails because in Wisconsin" }, { "docid": "22821843", "title": "", "text": "the same conditions under which a teacher’s tenure, a form of property under the Fourteenth Amendment, can be revoked. Although the Liquor Control Act does not prescribe equivalent protections for nonrenewal, it does provide (again in section 1) that “any licensee may renew his license at the expiration thereof, provided he is then qualified to receive a license and the premises for which such renewal license is sought are suitable for such purposes .... ” These criteria for renewal are undemanding, which suggests that the Illinois legislature expected most licenses to be renewed as a matter of course. From here it is only a step to equating nonrenewal with revocation and requiring the same safeguards against arbitrary nonrenewal as the statute expressly provides against arbitrary revocation. That step was taken in City of Wyoming v. Liquor Control Comm’n of Illinois, 48 Ill.App.3d 404, 409, 6 Ill.Dec. 258, 262, 362 N.E.2d 1080, 1084 (1977): “it could not have been the legislative intent that a local liquor control commissioner be able to easily avoid the application of the statutory procedural requirements to license revocation by waiting for the license to expire and then refuse to issue a renewal license. For that reason, we interpret the term ‘revocation’ [in section 5 of the Liquor Control Act] to include the refusal to issue a renewal license.” The plaintiffs allege that the defendants “wait[ed] for the license to expire and then refuse[d] to issue a renewal license,” and if true this entitled them under City of Wyoming to all the protections, procedural and substantive, of the revocation process, thus making their interest in renewal a property right for purposes of the Fourteenth Amendment. Cf. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 1-12, 98 S.Ct. 1554, 1554-1561, 56 L.Ed.2d 30 (1978). This is so even though section 1 provides that renewal is not a “vested right” but a “privilege” that shall not prevent the local liquor control commissioner “from decreasing the number of licenses to be issued .... ” If the number is reduced just to eliminate a particular licensee, which is" }, { "docid": "22821840", "title": "", "text": "a three-hour closing as to which the plaintiffs’ right to a subsequent hearing gave them all the process that was due), there was no deprivation of plaintiffs’ property, even if a liquor license is property (the defendants argue it is not). He also held that while the plaintiffs may have had a First Amendment right to play rock and roll music they had no constitutional right to sell liquor at the same time. Since Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), judicial discussions of whether a license or other interest is property for purposes of the due process clause of the Fourteenth Amendment invariably begin by observing that the answer depends on state (or, where applicable, which it is not here, federal) law; and when this observation is juxtaposed with the statement in section 1 of the . Illinois Liquor Control Act, Ill.Rev.Stat.1981, ch. 43, ¶ 119, that a liquor license “shall be purely a personal privilege ... and shall not constitute property,” the conclusion may seem inescapable that these plaintiffs had no Fourteenth Amendment property right in their liquor license. But it is not,, even if one takes literally the proposition that property, unlike life and liberty, comes from government. “Property” in the Illinois Liquor Control Act need not mean the same thing as “property” in the due process clause. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), the companion case to Roth, held that a teacher’s tenure contract creates a species of property, though it would not be so described under state law. And the rights of welfare recipients, though also not property in the conventional sense, were held in Goldberg v. Kelly, 397 U.S. 254, 261-62, 90 S.Ct. 1011, 1016-1017, 25 L.Ed.2d 287 (1970), to be property for purposes of the due process clause. Liquor licenses in Illinois cannot be sold or bequeathed and are limited in other ways that deprive them of some of the conventional attributes of property, but this does not mean they are not property in a due" }, { "docid": "21067200", "title": "", "text": "city's approval for operation of a halfway house, which could be withdrawn at will, did not create a property interest). Similarly, no property interest is implicated by the nonrenewal of a contract or license where there is no entitlement to the renewal. Roth, 408 U.S. 564, 92 S.Ct. 2701 (a professor hired under a one-year contract had no entitlement to its renewal and therefore no property interest). While an entitlement is required before a property interest is implicated, the entitlement need not be given explicitly. An entitlement to a renewal may be implied, for instance, from policies, practices, and understandings, if state law or other sources support a finding of such an entitlement. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). In Perry, a teacher in the Texas state college system who had been employed without tenure under four successive one-year contracts was terminated, allegedly for insubordination. While he agreed that the renewal of his contract was not secured by formal written terms or by a tenure policy, he argued that understandings fostered by the college administration created a de facto tenure program. Without deciding whether, under applicable state law or other sources, the teacher had proved an entitlement to a renewal of his contract, the Supreme Court stated: In this case, the respondent has alleged the existence of rules and understandings, promulgated and fostered by state officials, that may justify his legitimate claim of entitlement to continued employment absent \"sufficient cause.\" 408 U.S. at 602, 92 S.Ct. at 2700. The Court concluded that he could establish a property interest protected by the Fourteenth Amendment if he could demonstrate an entitlement in light of \"the policies and practices of the institution.\" Id. at 603, 92 S.Ct. at 2700. Similarly, mutual expectations may create an entitlement in a license. For instance, a state-issued license for the continued pursuit of the licensee's livelihood, renewable periodically on the payment of a fee and revocable only for cause, creates a property interest in the licensee. As the Supreme Court stated in Bell v. Burson, 402 U.S. 535, 91" } ]

[ { "docid": "6953436", "title": "", "text": "OPINION AND ORDER POLITAN, District Judge. This matter comes before the Court as an appeal pursuant to 28 U.S.C. § 158(a) from the Final Order of the Honorable William F. Tuohey, Judge of the United States Bankruptcy Court for the District of New 'Jersey, entered on September 14, 1988. In that Order, Judge Tuohey granted the debtor James Taylor’s motion to reject certain executory contracts, including contracts with appellants PolyGram Records, Inc., PolyGram Songs, Inc., and Delightful Music, Ltd. The Order also denied appellants’ cross-motions to dismiss Taylor’s bankruptcy petition on the grounds that it was filed in bad faith or in the alternative, for abstention from hearing Taylor’s motion to reject. This Court reviews issues of fact determined by the Bankruptcy Court under the “clearly erroneous” standard. See Fed.R.Civ.P. 52(a); Rule 8013 of the Rules of Bankruptcy Procedure. See also In re Morrissey, 717 F.2d 100, 104 (3d Cir.1983); Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir.1981); In re Dunes Casino Hotel, 63 B.R. 939, 944 (D.N.J.1986). Issues of law decided by the Bankruptcy Court are properly reviewed by this Court on a plenary basis. See Sharon Steel Corp. v. National Fuel Gas Distributors Corp., 872 F.2d 36, 38-39 (3d Cir.1989); In re Computer Communications, Inc., 824 F.2d 725, 728 (9th Cir.1987); Universal Minerals, 669 F.2d at 102; Dunes Casino Hotel, 63 B.R. at 944. From 1979 until February 1988, James Taylor (“debtor”) was the lead singer in a group known professionally as “Kool and the Gang”. Through 1988, all contracts and legal relationships for the group were arranged through “furnishing companies”. These furnishing companies were the actual contracting entities for the performers. The furnishing companies used by the group most frequently included: Quintet Associates, Inc., a corporation formed by the group’s members as the primary vehicle to arrange recording and other performance related contracts; Fresh Start Music, Inc., a corporation through which song publishing was conducted; and a third corporation, variously called Road Gang Enterprises, Inc. and/or Road Gang Associates Ltd., that furnished services of the group in connection with concerts and" } ]

[ { "docid": "18720642", "title": "", "text": "adopted the bankruptcy court’s recommendation. Because the district court was acting as a court of original jurisdiction, and not an appellate court reviewing the decision of the bankruptcy court, § 158(a) could not form the basis of the district court’s jurisdiction over the matter at issue. Therefore, this Court’s jurisdiction cannot stem from § 158(d); rather, 28 U.S.C. § 1291, the general grant of jurisdiction to courts of appeals, must provide the basis for appellate review. B. Section 1291 grants jurisdiction to the courts of appeals over appeals “from all final decisions of the district courts.” 28 U.S.C. § 1291. Consequently, we must ascertain whether Judge Giles’ order is final within the meaning of § 1291. The Creditors’ Committee asserts that the order is interlocutory and thus unreviewable at this time. The concept of “finality” for purposes of appellate jurisdiction should be viewed functionally. See In re UNR Industries, Inc., 725 F.2d 1111, 1115 (7th Cir.1984). In this regard, we have consistently considered finality in a more pragmatic and less technical way in bankruptcy cases than in other situations. See, e.g., Pacor, Inc. v. Higgins, 743 F.2d 984, 987 (3d Cir.1984); In re Comer, 716 F.2d 168, 171 (3d Cir.1983); Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190 (3d Cir.), cert. denied, — U.S. -, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983); In re Marin Motor Oil, Inc., 689 F.2d 445 (3d Cir.1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983); Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98 (3d Cir.1981). In Comer, this Court concluded that “[considerations unique to bankruptcy appeals have, in the past,” led us to interpret finality more broadly in the bankruptcy context than in other areas. 716 F.2d at 171. In In re Saco Local Development Corp., 711 F.2d 441, 443-48 (1st Cir.1983), Judge Breyer traced the concept of finality in bankruptcy proceedings, beginning with the Bankruptcy Act of 1867, § 8, 14 Stat. 517, 520, reprinted in 10 Collier on Bankruptcy App. 1750 (J. Moore 14th ed. 1978). He observed that the “longstanding Congressional policy" }, { "docid": "15456130", "title": "", "text": "which have found that a bankruptcy order determining whether an agreement is an executory contract or whether or not it is a lease or other agreement is a final order. See In re Ravenswood Apartments, Ltd., 338 B.R. 307, 309 (6th Cir. BAP 2006). As will be explained in further detail below, part of the Bankruptcy Court’s analysis was undoubtedly categorizing the lease agreement as either part of a single overarching executory contract, or rather, an independent lease that was merely related to a corresponding franchise agreement. However, although this analysis was presumably undertaken, it was only the premise for the significant question of what time period is applicable when interrelated executory and lease agreements are subject to assumption or rejection. Thus, the conclusion of the Bankruptcy Court now subject to this interlocutory appeal is not the categorization of the lease agreement but the timeline under which the Debtors can make their determination to assume or reject the Dunkin’ Leases. The Court agrees with the Respondents that this determination does not completely resolve all issues with respect to the Dunkin’ Leases because it merely extended the time to assume or reject the leases. See In re Calpine Corp., 356 B.R. 585, 596 (Bankr.S.D.N.Y.2007) (“The bankruptcy court’s Extension Order and denial of the Trustee’s request to move for summary judgment in the adversary proceeding are not final orders as they are clearly interlocutory and do not involve a ‘final determination’ of the controversy”). Accordingly, the Bankruptcy Court’s March 17 Order was not a “final order” within the meaning of 28 U.S.C. § 158(a)(1), and the Court will proceed to assess whether an interlocutory appeal is permissible in the instant case. B. Legal Standard to Grant an Interlocutory Appeal from, a Bankruptcy Court Order “Under Section 158(a)(3), a district court has discretionary appellate jurisdiction over an interlocutory order of a bankruptcy court.” In re Kassover, 343 F.3d 91, 94 (2d Cir.2003); see In re Cutter, No. 05 Civ. 5527, 2006 WL 2482674, at *3 (E.D.N.Y. Aug. 29, 2006) (stating that, while neither § 158 nor the Bankruptcy Rules “provides guidelines for determining" }, { "docid": "16825392", "title": "", "text": "bankruptcy protection in 2002, Exide was forced to compete directly against EnerSys, which was selling batteries under the name “Exide.” Then, when Exide filed for bankruptcy under Chapter 11, Exide was presented the opportunity to try to regain the Exide trademark by rejecting the Agreement. Exide sought the Bankruptcy Court’s approval to do so. B. Bankruptcy and District Court Proceedings On April 3, 2006, the Bankruptcy Court entered an order granting Exide’s motion to reject the Agreement. The court held that the Agreement was an executory contract, subject to rejection under 11 U.S.C. § 365(a), and that rejection terminated Exide’s obligations under it. About three months later, on July 11, the Bankruptcy Court entered an order approving the transition plan and denying EnerSys’s motion to stay. EnerSys appealed these two orders to the District Court. The District Court, on February 27, 2008, affirmed the Bankruptcy Court’s orders. EnerSys appeals the District Court’s order, arguing two issues: (1) the District Court erred in holding that Agreement was an executory contract, and (2) it erred in holding that rejection terminates Ener-Sys’s rights under the Agreement. II. DISCUSSION The Bankruptcy Court had jurisdiction under 28 U.S.C. §§ 157(a) and 1334(b). The District Court had jurisdiction to decide EnerSys’s appeal under 28 U.S.C. § 158(a). We have jurisdiction under 28 U.S.C. §§ 158(d) and 1291 to review the District Court’s final order. We exercise plenary review of an order from a district court sitting as an appellate court in review of a bankruptcy court. E.g., In re CellNet Data Sys., Inc., 327 F.3d 242, 244 (3d Cir.2003). We will review both courts’ legal conclusions de novo. Id.; In re Gen. DataComm Indus., Inc., 407 F.3d 616, 619 (3d Cir.2005). Furthermore, we will set aside a bankruptcy court’s factual findings only if clearly erroneous. In re CellNet Data, 327 F.3d at 244. For mixed questions of law and fact, we will engage in “a mixed standard” of review, “affording a clearly erroneous standard to integral facts, but exercising plenary review of the lower court’s interpretation and application of those facts to legal precepts.” Id. A." }, { "docid": "18599838", "title": "", "text": "FAGG, Circuit Judge. Vekco, Inc. (Vekco), a chapter 11 debtor, appeals a district court decision reversing a final order of the bankruptcy court and remanding the case back to the bankruptcy court for further proceedings. In response, the Federal Land Bank of Omaha (Federal Land Bank) asserts this court is without jurisdiction to consider Vekco’s appeal because the district court’s decision does not constitute a “final decision” for purposes of appellate jurisdiction. See 28 U.S.C. § 158(d). We agree and thus dismiss Vekco's appeal. On October 27, 1983, Vekco filed a chapter 11 bankruptcy petition. On August 14, 1984, the bankruptcy court rejected a variety of objections raised by the Federal Land Bank to Vekco’s amended plan of reorganization and confirmed Vekco’s plan. The bankruptcy court’s order resolved fully the merits of the controversy between Vekco and the Federal Land Bank. On appeal to the district court, the court properly recognized that the bankruptcy court order constituted a final order for purposes of appeal to the district court. Thus, the district court had jurisdiction to consider the Federal Land Bank’s appeal. See 28 U.S.C. § 158(a); see also by contrast In re Olson, 730 F.2d 1109 (8th Cir.1984); In re Leimer, 724 F.2d 744 (8th Cir.1984); In re Bestmann, 720 F.2d 484 (8th Cir.1983) (in each of which the district court incorrectly concluded the decision of the bankruptcy court was interlocutory in nature and on that basis declined jurisdiction and dismissed the appeal). In its appeal to the district court, the Federal Land Bank raised a variety of separate and distinct challenges to the bankruptcy court’s order. The district court, rather than resolve fully the merits of the bank’s appeal, addressed only two (or possibly three) of the issues presented and then remanded for further proceedings. In fact, in light of the need for remand, the district court expressly declined to address many of the issues raised by the bank. Following remand, Yekco filed its appeal with this court. This court’s jurisdiction over bankruptcy matters is limited to “final decisions, judgments, orders, and decrees” of the district court. 28 U.S.C." }, { "docid": "3981157", "title": "", "text": "trustee. The district court reversed and ruled that the committee could intervene. Construing 28 U.S.C. § 1293(b), the predecessor of § 158(d), this court determined that the district court’s order was appeal-able. The court approached finality prag matically, looking at the effect of the district court’s ruling. Id. at 447-49. The same pragmatic approach was followed in In Re Comer, 716 F.2d 168 (3rd Cir.1983), in which this court concluded it had jurisdiction to consider an appeal from a district court order reversing an order of a bankruptcy court refusing to lift an automatic stay. This court noted that effective review of the order could not await final disposition of the case in the bankruptcy court. Id. at 172. See also In Re Amatex Corp., 755 F.2d 1034, 1036-41 (3rd Cir. 1985) (allowing appeal under 28 U.S.C. § .1291 from district court order denying appointment of a representative for future claimants in an asbestos textile manufacturer’s bankruptcy proceeding). If the order here is not now appealable the entire bankruptcy proceedings must be completed before it can be determined whether they were proper in the first place. We do not view such a resolution as either desirable or practical. In light of Marin Motor Oil, Comer and Amatex, we therefore conclude that the district court’s order in this case is a final order under § 158(d). Accordingly, this court has jurisdiction to consider the Bank’s appeal. III The Bank contends that the district court erroneously affirmed the bankruptcy court's order. We will address the Bank’s four arguments in turn. A The Bank first contends that the lower courts erroneously concluded that the Bank lacks standing to move for dismissal under § 707(b). Our review of this legal issue is plenary. § 707(b) provides: After notice and a hearing, the court, on its own motion and not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of" }, { "docid": "18896204", "title": "", "text": "158(d) and 28 U.S.C. § 1291. See generally, Century Glove v. First Amer. Bank of N.Y., 860 F.2d 94, 97-99 (3d Cir.1988). The order refusing to dismiss the bankruptcy petition is likewise appealable, In the Matter of Christian, 804 F.2d 46 (3rd Cir.1986). This appeal presents an issue which has not previously been addressed in any reported appellate decision, namely, whether executory contracts for the personal services of the debtor may be rejected under § 365 of the Bankruptcy Code. Appellant argues that personal-service contracts are not, and cannot become, part of the estate being dealt with in the bankruptcy court, and therefore cannot be rejected or otherwise affected in a Chapter 11 proceeding. Alternatively, appellant argues that rejection should not have been permitted in this case because it was not sought in good faith and would not benefit the estate. A final argument is that the bankruptcy petition should have been dismissed because the debtor was not insolvent at the time the petition was filed, and lacked a genuine reorganization purpose, and because the petition was not filed in good faith. I. Factual Background James Taylor is a well-known professional musician and entertainer. From 1979 until mid-February 1988, he served as the lead singer and principal songwriter in a group known as “Kool and the Gang” (“The Group”). The services of The Group were furnished pursuant to various contracts arranged through “furnishing companies”— corporate entities in which various members of The Group held ownership interests. Thus, Quintet Associates, Ltd. was a corporation formed by the members of The Group to handle its recording contracts. Fresh Start Music, Inc. handled The Group’s musical publishing business. A third corporation, variously known as Road Gang Enterprises, Inc. and/or Road Gang Associates, Ltd., arranged The Group’s concerts and tours. Until 1985, Quintet contracted to provide The Group’s exclusive recording services to DeLite Recorded Sound Corp., and the individual members of The Group were required to furnish their recording services to Quintet so that Quintet could fulfill its contractual obligations to DeLite. In 1985, DeLite assigned its rights to Polygram Records, Inc., which entered" }, { "docid": "6953442", "title": "", "text": "the PolyGram Co-Publishing Agreement, the Delightful Publishing Agreement, and any other written or oral executory agreements between Taylor and the Kool and the Gang entities. In response to this motion, appellants Delightful and PolyGram filed a cross-motion seeking dismissal of the debtor’s Chapter 11 petition as having been filed in bad faith or, in the alternative, abstention by the Bankruptcy Court from hearing the debtor’s motion to reject in accordance with § 305 of the Bankruptcy Code. The Bankruptcy Court issued its Opinion and Order on September 14, 1988, granting the debtor’s motion to reject the executory contracts and denying appellants’ motion to dismiss and for abstention. PolyGram filed a Notice of Appeal on September 20, 1988 and Delightful filed its Notice of Appeal on September 26, 1988. Although not formally consolidated, these two appeals raise similar issues regarding the rejection of personal service contracts and the filing of the Chapter 11 petition in bad faith. Because of the similarity of issues presented, this Court’s Opinion applies with equal force to the appeal of PolyGram as well as Delightful. I. REJECTION OF EXECUTORY CONTRACTS The primary issue before the Court on this appeal is whether a debtor’s exec-utory personal service contracts may be rejected in a bankruptcy proceeding. Appellants PolyGram and Delightful argue that the Bankruptcy Court erred in permitting rejection of the executory personal service contracts because such contracts are not part of the debtor’s estate under § 541 of the Code and therefore the trustee has no power to act on these contracts. Moreover, appellants argue that under § 365(c)(1)(A) of the Bankruptcy Code, the trustee is precluded from rejecting a personal service contract because that section speaks only to assignment or assumption of such contracts. Because the provision does not specifically address rejection of such contracts, appellants argue that the trustee has no authority to take such action. The debtor, on the other hand, argues that executory contracts for personal services must be rejected upon the filing of a petition in bankruptcy because, under principles of nonbankruptcy law, such contracts cannot be assumed by the trustee. The" }, { "docid": "18890458", "title": "", "text": "purposes unrelated to this appeal. Subsequently, Dunkley defaulted on his obligation to Pacific and thereafter Pacific obtained a judgment foreclosing its deed of trust on the 340 acres. When Rega filed for protection under Chapter 11 in June 1985, the bankruptcy court authorized Rega to reject its real estate contract with Dunkley in accordance with 11 U.S.C. § 365. Dunkley subsequently moved to dismiss Rega’s bankruptcy petition for cause under 11 U.S.C. § 1112(b), alleging that Rega had filed in bad faith. The bankruptcy court denied Dunkley’s motion to dismiss and resolved his claim by authorizing the return of the remaining land to Dunkley with damages representing the difference between Dunk-ley’s claim and the value of the property. The district court affirmed the bankruptcy court’s order denying Dunkley’s motion to dismiss and determining the measure of damages. Dunkley now appeals from the district court’s judgment. II Under 28 U.S.C. § 158(d), the courts of appeals have jurisdiction over appeals only from final decisions, judgments, orders, and decrees entered by a district court from a bankruptcy appeal. Zolg v. Kelly (In re Kelly), 841 F.2d 908, 911 (9th Cir.1988); King v. Stanton (In re Stanton), 766 F.2d 1283, 1285 (9th Cir.1985). Unlike the district courts, the courts of appeals may not grant leave to hear interlocutory bankruptcy appeals. “Interlocutory orders are not appealable as of right. They may be reviewed at the discretion of the district courts ... but they are not appealable to the court of appeals under 28 U.S.C. § 158(d).” Pizza of Hawaii, Inc. v. Shakey’s, Inc. (In re Pizza of Hawaii, Inc.), 761 F.2d 1374, 1378 (9th Cir.1985) (citations omitted). In this case, the bankruptcy court denied Dunkley’s motion to dismiss Rega’s bankruptcy action for bad faith under section 1112(b), and the district court affirmed. Therefore, the jurisdictional question before us is whether the district court’s order affirming the bankruptcy court’s decision denying Dunkley’s motion to dismiss is a final, appealable order under section 158(d). This court has adopted a pragmatic approach to deciding whether a bankruptcy court’s order is final, “recognizing that 'certain proceedings in a" }, { "docid": "23206093", "title": "", "text": "interlocutory appeal and none was granted. The district court affirmed the “opinion and order” of the bankruptcy court and remanded so that that court could decide the motion for leave to assume the lease. Had GPA successfully sought permission to appeal an interlocutory order to the district court, as I believe it should have done if it wanted immediate review, we would have no jurisdiction to consider the district court’s disposition of the appeal. In re Comer, 716 F.2d 168, 172 (3rd Cir.1983). Both GPA and the district court, however, treated the bankruptcy court’s order regarding the existence of the lease as a final order. GPA accordingly asserts that we have jurisdiction under 28 U.S.C. § 158(d) which gives us jurisdiction to review “all final decisions, judgments, orders, and decrees” entered by a district court that has exercised its appellate jurisdiction over an order of its bankruptcy court. It follows that if either the order of the bankruptcy court finding an existing contract or the order of the district court affirming that view and remanding for action on the pending motion is a non-final order, we have no jurisdiction. I would hold that neither is a final order. I, of course, acknowledge that our cases have taken a more flexible view of finality in the context of a bankruptcy proceeding than in the context of other civil litigation. As we observed in In re Brown, 803 F.2d 120, 122 (3d Cir.1986), however: [In re] Marin Motor Oil [ Inc., 689 F.2d 445 (3d Cir.1982) ] and Amatex stand for the proposition that this court must consider finality functionally in bankruptcy cases. 755 F.2d at 1039. Because bankruptcy cases involve numerous parties with different claims, the court must consider the practical consequences of delaying resolution of the issue presented. Where the issue is likely to affect the distribution of the debtor’s assets, or the relationship among the creditors, the most pragmatic response will usually be to hear the appeal immediately. This does not mean, however, that there are no jurisdictional limits imposed by section 158(d). District courts may hear both final" }, { "docid": "5132572", "title": "", "text": "of that requirement than in appeals under section 1291 generally. Comer, 716 F.2d at 171; Official Unsecured Creditors’ Comm. v. Michaels (In re Marin Motor Oil), 689 F.2d 445, 449 (3d Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983). We have found a pragmatic and less technical approach to finality to be more appropriate in bankruptcy proceedings that often are protracted and involve numerous parties asserting various claims. “To delay resolution of discrete claims until after final approval of a reorganization plan, for example, would waste time and resources, particularly if the appeal resulted in reversal of a bankruptcy court order necessitating re-appraisal of the entire plan.” Clark v. First State Bank (In re White Beauty View), 841 F.2d 524, 526 (3d Cir.1988). See also F/S Airlease II, Inc. v. Simon, 844 F.2d 99, 104 (3d Cir.1988), petition for cert. filed, — U.S. -, 109 S.Ct. 137, 101 L.Ed.2d - (1988); Walsh Trucking Co. v. Insurance Co. of North America, 838 F.2d 698, 701 (3d Cir.1988); Wheeling-Pittsburgh Steel Corp. v. McCune, 836 F.2d 153, 157-58 (3d Cir.1987); In re Jeannette Corp., 832 F.2d 43, 45 (3d Cir.1987); Southeastern Sprinkler Co. v. Meyertech Corp., 831 F.2d 410, 414 (3d Cir.1987); In re Christian, 804 F.2d 46, 48 (3d Cir.1986); Brown v. Pennsylvania State Employees Credit Union, 803 F.2d 120, 121-22 (3d Cir.1986). In Comer, a debtor appealed from an order lifting the automatic stay, a ruling which would have permitted foreclosure actions against the debtor’s property to proceed. We commented that the challenged order ended the particular controversy between the debtor and creditors and that nothing more needed to be done on the matter by the district or bankruptcy judges. Comer, 716 F.2d at 172. We concluded that, given the spectre of impending foreclosure, the ruling was not one which could await final resolution of the bankruptcy proceeding. Id. Therefore, we entertained the appeal. Likewise, in West Electronics the bankruptcy judge refused to lift the automatic stay so that the government could terminate a contract with the debtor, and the district court affirmed. We determined there" }, { "docid": "1120998", "title": "", "text": "the Court to determine what, if any, sanctions shall emanate as a result of this Memorandum Opinion and Order.” Before the bankruptcy judge could convene further proceedings, the debtor’s attorney filed an appeal in the district court, as well as an appeal from the related order denying a motion to compel the trustee to perform certain duties. The district court affirmed both orders. The debtor’s counsel appeals the affirmance of both the sanction order and the denial of the motion to compel. The parties assert that we have appellate jurisdiction under 28 U.S.C. § 158(d) (Supp. Ill 1985). Despite this concession, however, we have a duty to raise the issue of jurisdiction sua sponte. Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 537 n. 1 (3d Cir.1985). See also Cannon v. Hawaii Corp., 796 F.2d 1139 (9th Cir.1986). The appealability of orders issued by bankruptcy judges is governed by 28 U.S.C. § 158 (Supp. Ill 1985). Section 158(a) authorizes district courts to hear appeals from “final judgments, orders, and decrees, and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges.” Section 158(d) provides that “[t]he courts of appeals shall have jurisdiction of appeals from all final decisions, judgments, orders, and decrees entered under subsection[] (a).” The statutory language clearly authorizes the district courts to grant leave to hear appeals from interlocutory orders. It is equally plain that no such power is granted to the courts of appeals; rather, our jurisdiction is limited to final orders and judgments. In the past we have observed that the unique considerations attendant to bankruptcy appeals permit us to be “somewhat less concerned about the dangers of interpreting finality in appeals under section 1293(b) [in a manner] slightly more broadly than in appeals under section 1291.” Moxley v. Comer (In re Comer), 716 F.2d 168, 171 (3d Cir.1983), quoting Official Unsecured Creditors’ Comm. v. Michals, 689 F.2d 445, 449 (3d Cir.1982), cert. denied, 459 U.S. 1206, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983). That approach addresses such pragmatic considerations as the waste of time and resources that would result if" }, { "docid": "16825393", "title": "", "text": "that rejection terminates Ener-Sys’s rights under the Agreement. II. DISCUSSION The Bankruptcy Court had jurisdiction under 28 U.S.C. §§ 157(a) and 1334(b). The District Court had jurisdiction to decide EnerSys’s appeal under 28 U.S.C. § 158(a). We have jurisdiction under 28 U.S.C. §§ 158(d) and 1291 to review the District Court’s final order. We exercise plenary review of an order from a district court sitting as an appellate court in review of a bankruptcy court. E.g., In re CellNet Data Sys., Inc., 327 F.3d 242, 244 (3d Cir.2003). We will review both courts’ legal conclusions de novo. Id.; In re Gen. DataComm Indus., Inc., 407 F.3d 616, 619 (3d Cir.2005). Furthermore, we will set aside a bankruptcy court’s factual findings only if clearly erroneous. In re CellNet Data, 327 F.3d at 244. For mixed questions of law and fact, we will engage in “a mixed standard” of review, “affording a clearly erroneous standard to integral facts, but exercising plenary review of the lower court’s interpretation and application of those facts to legal precepts.” Id. A. Executory contract The policy behind Chapter 11 of the Bankruptcy Code is the “ultimate rehabilitation of the debtor.” Nicholas v. United States, 384 U.S. 678, 687, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966). The Code therefore allows debtors in possession, “subject to the court’s approval, ... [to] reject any executory contract or unexpired lease of the debtor.” 11 U.S.C. § 365(a). But the Bankruptcy Code does not define “executory contract.” Relevant legislative history demonstrates that Congress intended the term to mean a contract “on which performance is due to some extent on both sides.” H.R.Rep. No. 95-595, 347 (1977), 1978 U.S.C.C.A.N. 5787, 5963; see In re Columbia Gas Sys. Inc., 50 F.3d 233, 238 (3d Cir.1995). With congressional intent in mind, this Court has adopted the following definition: “ ‘An executory contract is a contract under which the obligation of both the bankrupt and the other party to the contract are so far underperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other.’” In re" }, { "docid": "23041961", "title": "", "text": "889 F.2d 950, 953 (10th Cir.1989) (Tenth Circuit has interpreted “final order” requirement of section 158(d) in traditional finality terms). Since the district court order appealed herein simply affirmed the bankruptcy court’s decision, we have jurisdiction only if the latter may be deemed final for purposes of section 158(d). See In re International Horizons, Inc., 689 F.2d 996, 1000 (11th Cir.1982); see, e.g., In re Cash Currency Exch., Inc., 762 F.2d 542, 545-46 (7th Cir.1985); see also In re Durability, 893 F.2d at 266 (while nonfinal bankruptcy court order may properly be subject of interlocutory appeal to district court pursuant to section 158(a), where district court’s subsequent appellate ruling does not alter nonfinal character of disposition, court of appeals lacks jurisdiction to review matter under section 158(d)). A number of courts have indicated that where the bankruptcy court denies or withholds confirmation of a proposed Chapter 13 plan without also dismissing the underlying petition or proceeding, its decision is not final for purposes of appeal. See, e.g., Maiorino v. Branford Sav. Bank, 691 F.2d 89, 90-91 (2d Cir.1982); In re Madill, 65 B.R. 729, 731 (D.Mont.1986); In re Hardy, 30 B.R. 109, 111 (Bkrtcy.S.D. Ohio 1983); cf. In re Chinichian, 784 F.2d 1440, 1442, 1444 (9th Cir.1986) (order only partially confirming Chapter 13 plan nonfinal and, therefore, appeal therefrom did not divest bankruptcy court of jurisdiction to revoke same). But see In re Blankemeyer, 861 F.2d 192, 193 (8th Cir.1988) (district court order affirming bankruptcy court’s rejection of Chapter 11 plan characterized as a “final judgment,” without further discussion of jurisdictional issue); In re Hardy, 755 F.2d 75, 76 (6th Cir.1985) (appeal from rejection of Chapter 13 plan heard by court of appeals with no acknowledgment of jurisdictional problem recognized in related opinion issued by bankruptcy court in same case, In re Hardy, 30 B.R. 109). This approach is entirely consistent with two general principles regarding finality well-settled in this circuit, i.e., (1) an order is not final unless it ends the litigation on the merits, leaving nothing for the court to do but execute the judgment, see In re" }, { "docid": "6953441", "title": "", "text": "advanced an additional $500,000 to Quintet. At a meeting held in December 1987 the group was presented with a report listing currently outstanding bills. This list reflected outstanding loans and accounts payable owed by the group of $3,352,109. The report noted that this sum did not include PolyGram advances which, at the time, were approximately $950,000. Of the debts owed by the various Kool and the Gang entities, certain debts had been personally guaranteed by members of the group, including the debtor. Three of these loans are at issue in this case: a loan from First InterCounty Bank in the amount of $515,000; a second loan from First City National Bank in the amount of $265,000; and several advances from Norby Walters totalling $514,000. On May 24, 1988 James Taylor filed a petition for relief pursuant to Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of New Jersey. On June 13, 1988 Taylor filed a Motion for Authority to Reject certain ex-ecutory contracts, including the PolyGram Recording Agreement, the PolyGram Co-Publishing Agreement, the Delightful Publishing Agreement, and any other written or oral executory agreements between Taylor and the Kool and the Gang entities. In response to this motion, appellants Delightful and PolyGram filed a cross-motion seeking dismissal of the debtor’s Chapter 11 petition as having been filed in bad faith or, in the alternative, abstention by the Bankruptcy Court from hearing the debtor’s motion to reject in accordance with § 305 of the Bankruptcy Code. The Bankruptcy Court issued its Opinion and Order on September 14, 1988, granting the debtor’s motion to reject the executory contracts and denying appellants’ motion to dismiss and for abstention. PolyGram filed a Notice of Appeal on September 20, 1988 and Delightful filed its Notice of Appeal on September 26, 1988. Although not formally consolidated, these two appeals raise similar issues regarding the rejection of personal service contracts and the filing of the Chapter 11 petition in bad faith. Because of the similarity of issues presented, this Court’s Opinion applies with equal force to the appeal of PolyGram" }, { "docid": "23206092", "title": "", "text": "The debtor, MSI, filed a motion in the bankruptcy court “for leave to assume a lease.” After the filing of an answer to that motion, it was the subject of two pretrial conferences and was set for trial on March 16, 1987. A week before trial, the court entered an order directing that the trial would be limited to the issue of “whether there is an existing lease subject to assumption or rejection by the debtor.” The order further provided that if a lease were found to exist, the court would thereafter determine “the effect of an assumption of the lease [upon the debtor] and how the debtor proposes to cure any defaults thereunder.” A.000095. After trial, the bankruptcy court determined that a lease did exist on the date the petition was filed. However, before it could address the other issues involved in determining whether the “leave to assume the lease” should be granted, GPA filed an appeal to the district court. In doing so, it sought no permission from the district court for an interlocutory appeal and none was granted. The district court affirmed the “opinion and order” of the bankruptcy court and remanded so that that court could decide the motion for leave to assume the lease. Had GPA successfully sought permission to appeal an interlocutory order to the district court, as I believe it should have done if it wanted immediate review, we would have no jurisdiction to consider the district court’s disposition of the appeal. In re Comer, 716 F.2d 168, 172 (3rd Cir.1983). Both GPA and the district court, however, treated the bankruptcy court’s order regarding the existence of the lease as a final order. GPA accordingly asserts that we have jurisdiction under 28 U.S.C. § 158(d) which gives us jurisdiction to review “all final decisions, judgments, orders, and decrees” entered by a district court that has exercised its appellate jurisdiction over an order of its bankruptcy court. It follows that if either the order of the bankruptcy court finding an existing contract or the order of the district court affirming that view and remanding" }, { "docid": "18896203", "title": "", "text": "OPINION OF THE COURT FULLAM, District Judge.. James Taylor, as debtor-in-possession in this Chapter 11 bankruptcy proceeding, sought the bankruptcy court’s approval of his decision to reject certain executory contracts, including a music-publishing agreement dated November 13, 1985, between the debtor and the appellant, Delightful Music, Ltd. The latter objected, moved to dismiss the bankruptcy petition, and requested the court to abstain from ruling on the rejection request. The Bankruptcy Court granted permission to reject the executory contract, and refused to dismiss the bankruptcy petition or abstain. The district court upheld these rulings, In re Taylor, 103 B.R. 511 (D.N.J.1989), and Delightful now appeals. Under 28 U.S.C. § 158(d), this court has jurisdiction to review “final” orders. In the bankruptcy context, finality is accorded a somewhat flexible, pragmatic definition, see, In re Comer, 716 F.2d 168, 171 (3d Cir.1983). The order approving rejection of appellant’s contracts fully and finally resolved a discrete set of issues, leaving no related issues for later determination; we conclude that that order is final and appealable for purposes of § 158(d) and 28 U.S.C. § 1291. See generally, Century Glove v. First Amer. Bank of N.Y., 860 F.2d 94, 97-99 (3d Cir.1988). The order refusing to dismiss the bankruptcy petition is likewise appealable, In the Matter of Christian, 804 F.2d 46 (3rd Cir.1986). This appeal presents an issue which has not previously been addressed in any reported appellate decision, namely, whether executory contracts for the personal services of the debtor may be rejected under § 365 of the Bankruptcy Code. Appellant argues that personal-service contracts are not, and cannot become, part of the estate being dealt with in the bankruptcy court, and therefore cannot be rejected or otherwise affected in a Chapter 11 proceeding. Alternatively, appellant argues that rejection should not have been permitted in this case because it was not sought in good faith and would not benefit the estate. A final argument is that the bankruptcy petition should have been dismissed because the debtor was not insolvent at the time the petition was filed, and lacked a genuine reorganization purpose, and because the" }, { "docid": "17466704", "title": "", "text": "days after the settlement agreement had become final, TCO filed a voluntary Chapter 11 petition in bankruptcy in Delaware. On February 20, 1992, the class members filed a motion to compel TCO to assume or reject the settlement agreement under the Bankruptcy Code, 11 U.S.C. § 365. TCO and the class members had agreed that TCO would assume the settle ment agreement and jointly filed a proposed order. After notice of the proposed order was sent to the proper parties, the United States filed an objection on behalf of the Internal Revenue Service, one of TCO’s creditors. Finding the settlement agreement was not executory within the meaning of 11 U.S.C. § 865, the bankruptcy court upheld the objection and denied the class members’ motion. The class members appealed to the United States District Court for the District of Delaware. The district court held that the settlement agreement was a contract, but affirmed the bankruptcy court on the grounds the contract was not executory for purposes of § 365. In re Columbia Gas, 146 B.R. at 113-14. Therefore TCO did not have the option of assuming or rejecting the settlement agreement. Id. at 114. This appeal followed. II. We “exercise plenary review of the legal standard applied by the district and bankruptcy courts, but review the latter court’s findings of fact on a clearly erroneous standard.” In re Abbotts Dairies, Inc., 788 F.2d 143, 147 (3d Cir.1986) (citations omitted). “Because in bankruptcy cases the district court sits as an appellate court, our review of the district court’s decision is plenary.” Brown v. Pennsylvania State Employees Credit Union, 851 F.2d 81, 84 (3d Cir.1988); see also Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101 (3d Cir.1981). Jurisdiction in the bankruptcy court was proper under 28 U.S.C. § 157(a) (1988). The district court had jurisdiction over the appeal from the final order of the bankruptcy court, id. § 158(a), and we have jurisdiction over the appeal of the district court’s judgment under 28 U.S.C. § 158(d). III. In this appeal, we must decide whether the settlement agreement was a" }, { "docid": "3981155", "title": "", "text": "OPINION OF THE COURT SEITZ, Circuit Judge. Appellant Union Chelsea Bank (the “Bank”) appeals from an order of the district court affirming a bankruptcy court order denying the motions of the Bank, the Trustee in Bankruptcy (the “Chapter 7 Trustee”), and other creditors to dismiss under 11 U.S.C. § 707(b) the Chapter 7 petition of debtors Edward S. and Diane C. Christian. As discussed more fully below, this court has jurisdiction to review the district court’s order under 28 U.S.C. § 158(d). I On November 26, 1984, the Christians filed a joint petition for relief under Chapter 7 of the Bankruptcy Code. At a subsequent meeting of creditors conducted pursuant to 11 U.S.C. § 341(a), the Bank and other creditors examined the Christians. Based upon the petition and information revealed at the creditors’ meeting, the Bank became convinced that granting Chapter 7 relief to the Christians would be a substantial abuse of the Bankruptcy Code. The Bank thereafter moved to dismiss the Christian petition under 11 U.S.C. § 707(b). The Chapter 7 Trustee and other creditors joined in the Bank’s motion. The bankruptcy court denied the motions of the Bank, the Chapter 7 Trustee and the other creditors on the ground that the court alone could move to dismiss under § 707(b). Only the Bank appealed the bankruptcy court’s order to the district court. That court affirmed the bankruptcy court “in all respects.” This appeal followed. II As a preliminary matter, this court must consider the Christians’ contention that the court lacks jurisdiction to review the district court’s order. The Christians argue that the order is interlocutory and therefore not appealable under 28 U.S.C. § 158(d). Section 158(d) grants this court jurisdiction of appeals from all final decisions, judgments, orders and decrees entered by a district court or a bankruptcy appellate panel on appeal from a bankruptcy court. In In re Marin Motor Oil, 689 F.2d 445 (3rd Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983), the bankruptcy court denied a motion of a creditor’s committee to intervene in adversary proceedings instituted by a bankruptcy" }, { "docid": "1096502", "title": "", "text": "termination payment to MHLC. The Trustee filed an objection to Occidental’s claim. He sought to have the amount of $392,500 discounted to its present value as of the date O.P.M. filed its petition. A hearing was held on March 5, 1986, at which time Judge Lifland sustained the Trustee’s objection to the amount of Occidental’s claim. On March 10, 1986, an Order was entered allowing the claim, but in the discounted amount of $214,674.40. Thereupon, Occidental commenced this appeal. DISCUSSION This appeal raises the sole issue of whether Judge Lifland erred in discounting Occidental’s claim to its present value as of the date O.P.M. filed its petition in bankruptcy. A. Standard of Review Pursuant to 28 U.S.C. § 158(a), the district court has “jurisdiction to hear appeals from final judgments, orders, and decrees” of the bankruptcy court. Bankruptcy Rule 8013 provides that the district court “may affirm, modify, or reverse a bankruptcy court’s judgment, order or decree or remand with instructions for further proceedings.” Although a bankruptcy court’s findings of fact should not be disturbed unless “clearly erroneous,” its conclusions of law may be reviewed de novo. See In re New England Fish Co., 749 F.2d 1277, 1280 (9th Cir.1984); In re Dill, 731 F.2d 629, 631 (9th Cir.1984); In re Multiponics, Inc., 622 F.2d 709, 713 (5th Cir.1980) (a bankruptcy court’s conclusions of law are “freely reviewable”). B. The Statutory Framework Section 365(a) of the Bankruptcy Code provides that a “trustee, subject to the Court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.” 11 U.S.C. § 365(a). The trustee may elect to assume or to reject at “any time before the confirmation of a plan” of reorganization. Id. § 365(d)(2). Generally, a business judgment rule is used by the bankruptcy court in determining whether the trustee’s assumption or rejection should be approved. See In re O.P.M. Leasing Services, Inc., 23 B.R. 104, 118 (Bankr.S.D.N.Y.1982). In addition, “the court, on the request of any party to such contract or lease, may order the trustee to determine within a specified period of time whether to" }, { "docid": "3981156", "title": "", "text": "creditors joined in the Bank’s motion. The bankruptcy court denied the motions of the Bank, the Chapter 7 Trustee and the other creditors on the ground that the court alone could move to dismiss under § 707(b). Only the Bank appealed the bankruptcy court’s order to the district court. That court affirmed the bankruptcy court “in all respects.” This appeal followed. II As a preliminary matter, this court must consider the Christians’ contention that the court lacks jurisdiction to review the district court’s order. The Christians argue that the order is interlocutory and therefore not appealable under 28 U.S.C. § 158(d). Section 158(d) grants this court jurisdiction of appeals from all final decisions, judgments, orders and decrees entered by a district court or a bankruptcy appellate panel on appeal from a bankruptcy court. In In re Marin Motor Oil, 689 F.2d 445 (3rd Cir.1982), cert. denied, 459 U.S. 1207, 103 S.Ct. 1196, 75 L.Ed.2d 440 (1983), the bankruptcy court denied a motion of a creditor’s committee to intervene in adversary proceedings instituted by a bankruptcy trustee. The district court reversed and ruled that the committee could intervene. Construing 28 U.S.C. § 1293(b), the predecessor of § 158(d), this court determined that the district court’s order was appeal-able. The court approached finality prag matically, looking at the effect of the district court’s ruling. Id. at 447-49. The same pragmatic approach was followed in In Re Comer, 716 F.2d 168 (3rd Cir.1983), in which this court concluded it had jurisdiction to consider an appeal from a district court order reversing an order of a bankruptcy court refusing to lift an automatic stay. This court noted that effective review of the order could not await final disposition of the case in the bankruptcy court. Id. at 172. See also In Re Amatex Corp., 755 F.2d 1034, 1036-41 (3rd Cir. 1985) (allowing appeal under 28 U.S.C. § .1291 from district court order denying appointment of a representative for future claimants in an asbestos textile manufacturer’s bankruptcy proceeding). If the order here is not now appealable the entire bankruptcy proceedings must be completed before it" } ]

[ { "docid": "2093214", "title": "", "text": "[it] meaning.’” Ballay, et al. v. Legg Mason Wood, Walker, Inc., 925 F.2d 682, 688 (3d Cir.1991) (quoting Massachusetts v. Morash, 490 U.S. 107, 115, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989)). We noted in Ballay that when construing the meaning of one term in a phrase, the Supreme Court has stated: The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to Acts of Congress. Id. (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961)). With these canons of construction in mind, we turn to the case law construing the term “any interest” under section 363(f). Courts faced with the task of defining the scope of the term “any interest” have been unable to provide a precise definition. 3 Collier on Bankruptcy ¶363.06[1]. Although some courts have narrowly interpreted that phrase to mean only in rem interests in property, see e.g., In re Fair-child Aircraft Corp., 184 B.R. 910, 917-19 (Bankr.W.D.Tex.1995), vacated on other grounds, 220 B.R. 909 (Bankr.W.D.Tex. 1998), the trend seems to be towards a broader interpretation which includes other obligations that may flow from ownership of the property. 3 Collier on Bankruptcy ¶ 363.06[1] (citing In re Leckie Smokeless Coal Co., 99 F.3d 573, 582 (4th Cir.1996) (holding that debtor coal mine operators could sell their assets under § 363(f) free and clear of successor liability that otherwise would have arisen under federal statute)); In re P.K.R. Convalescent Centers, Inc., 189 B.R. 90, 92-94 (Bankr.E.D.Va.1995) (holding that § 363(f) permitted sale free and clear of state’s depreciation-recapture interest in the debtor’s property); In re WBQ Partnership, 189 B.R. 97 (Bankr.E.D.Va.1995) (holding statutory right to recover depreciation was within “interests” under S 363(f); In re White Motor Credit Corp., 75 B.R. 944 (Bankr.N.D.Ohio 1987) (holding that S 363(f) precluded tort claims against asset purchaser)). In Leckie, certain employer-sponsored benefit plans (the “plans”) objected to the extinguishment of" } ]

[ { "docid": "4039853", "title": "", "text": "Bank-Thedford v. Hanna (In re Hanna), 912 F.2d 945, 950 n. 8 (8th Cir.1990); see also S. Motor Co. v. Cater-Pritchett-Hodges, Inc. (In re MMH Auto. Group, LLC), 385 B.R. 347, 365 (Bankr.S.D.Fla.2008) (\"All courts that have considered section 363(l) view this statute section as one of a series of Bankruptcy Code provisions ... that either invalidate, or strictly limit the enforceability of, bankruptcy forfeiture provisions.”); 3 Collier on Bankruptcy ¶ 363.10[1] (\"Under this provision, parties may not contract out of bankruptcy by placing restrictions on the debtor's use, sale or lease of property triggered by the debtor's bankruptcy....\"). . Michael St. Patrick Baxter, Section 363 Sales Free and Clear of Interests: Why the Seventh Circuit Erred In Precision Industries v. Qualitech Steel, 59 Bus. Law. 475, 483-84 (2004). . It is also worth noting that the Baxter article, see supra note 22, specifically responds to, and criticizes, the Seventh Circuit's decision in Precision Industries, Inc. v. Qualitech Steel SBQ, LLC (In re Qualitech Steel Corporation and Qualitech Steel Holdings Corporation), a case of first impression at the circuit level that analyzed the relationship between \"two distinct provisions of the Bankruptcy Code: 11 U.S.C. § 363(f), which authorizes the sale of a debtor's property free of any 'interest' other than the estate's, and 11 U.S.C. § 365(h), which protects the rights of the lessee when the debtor rejects a lease of estate property.” 327 F.3d 537, 540 (7th Cir.2003). As such, the author acknowledged that \"[a]n examination of the relationship between § 363(f) and § 365(n) [was] beyond the scope of this Article.” Id. at 499 n. 156. . Compak Cos., LLC v. Johnson, 415 B.R. 334 (N.D.Ill.2009); Shaw Group, Inc. v. Bechtel Jacobs Co., LLC, (In re The IT Group, Inc.), 350 B.R. 166 (Bankr.D.Del.2006); In re Dy namic Tooling Sys., Inc., 349 B.R. 847 (Bankr.D.Kan.2006); In re Access Beyond Techs., Inc., 237 B.R. 32 (Bankr.D.Del.1999). . See also George W. Shuster, Jr., The Trust Indenture Act and International Debt Restructarings, 14 Am. Bankr.Inst. L.Rev. 431, 455 (2006) (“Section 1506 is an ‘anti-comity’ provision, allowing the U.S. court to" }, { "docid": "4169120", "title": "", "text": "court concluded that since the plan/ fund had statutory claims against the debtor for future premium payments, it had an interest in the debtor’s property. Id. The Fourth Circuit agreed, not because of the plan/fund’s right to demand money from the debtor, but because the right derived from the fact that the debtor put its assets to use in the coal mining industry. Id. at 581-82. Had the debtor chosen to use the assets for another purpose, the plan/fund would not have had the right to demand payments. Id. at 582. The term “interest” is intended to refer to obligations that are connected to, or arise from, the property being sold. See 3 Collier on Bankruptcy ¶ 363.06[1], at 363-45 (Lawrence P. King ed., 15th ed. rev.1997). The bankruptcy court in Eastern Virginia has considered a state statute which provided that a state agency had the right to recapture depreciation from operators of nursing homes if the operators realized a gain on the sale of their real property. In P.KR. Convalescent Ctrs., Inc. v. Commonwealth of VA, Dep’t of Med. Assistance Serv. (“In re P.K.R. Convalescent Ctrs., Inc.”), 189 B.R. 90 (Bkrtcy.E.D.Va.1995). The state statute also provided that the state agency had a right to pursue the purchasers if the operators failed to reimburse the state. Id. at 91. The court found the state agency’s right to recapture depreciation from the debtor, an operator of a nursing home, to be an “interest” in property because its right was tied to the sale of the real property. Id. at 94. Both In re Leckie Smokeless Coal Co. and In re P.K.R. Convalescent Ctrs. Inc. are distinguishable. In both of those cases, the purchase and subsequent ownership of the estate property resulted in someone’s (the purchaser’s) liability. The instant matter does not center on the purchase and subsequent ownership in the same way; it centers on what Monroe purchased, not what “purchaser liabilities” resulted from the purchase. Any right of recoupment that General Accident has derives from the collected premiums the Debtor owes to General Accident arising from the same transaction or" }, { "docid": "7175712", "title": "", "text": "other obligations that may flow from ownership of the property.” 3 Collier on Bankruptcy ¶ 363.06[1]. Sister courts have held that § 363(f) may be used to bar a variety of successor liability claims that relate to ownership of property: an “interest” might encompass Coal Act obligations otherwise placed upon a successor purchasing coal assets, In re Leckie Smokeless Coal Co., 99 F.3d 573, 581-82 (4th Cir. 1996), travel vouchers issued to settle an airline’s discrimination claims in a sale of airline assets, Trans World Airlines, 322 F.3d at 288-90, or a license for future use of intellectual property when that property is sold, FutureSource LLC v. Reuters Ltd., 312 F.3d 281, 285 (7th Cir. 2002). See generally Precision Indus., Inc. v. Qualitech Steel SBQ, LLC, 327 F.3d 537, 545 (7th Cir. 2003) (“[T]he term ‘interest’ is a broad term no doubt selected by Congress to avoid ‘rigid and technical definitions drawn from other areas of the law.’ ” (quoting Russello v. United States, 464 U.S. 16, 21, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983))). In these instances, courts require “a relationship between the[ ] right to demand ... payments from the debtors and the use to which the debtors had put their assets.” Trans World Airlines, 322 F.3d at 289. We agree that successor liability claims can be “interests” when they flow from a debtor’s ownership of transferred assets. See 3 Collier in Bankruptcy ¶¶ 363.06[1], [7]; Trans World Airlines, 322 F.3d at 289. But successor liability claims must also still qualify as “claims” under Chapter 11. Though § 363(f) does’ not expressly invoke the Chapter 11 definition of “claims,” see 11 U.S.C. § 101(5), it makes sense to “harmonize” Chapter 11 reorganizations and § 363 sales “to the extent permitted by the statutory language.” Chrysler, 576 F.3d at 125; see Lionel, 722 F.2d at 1071 (“[S]ome play for the operation of both § 363(b) and Chapter 11 must be allowed for.”). Here, the bankruptcy court’s power to bar “claims” in a quick § 363 sale is plainly no broader than its power in a traditional Chapter 11 reorganization." }, { "docid": "4169119", "title": "", "text": "they have a claim against the estate. Id. at 581. The Second Circuit has not defined an “interest” in property for purposes of Code § 363(f) and neither the parties nor the court found cases discussing recoupment as an “interest” in property. Recoupment and set-off rights are usually determined by state law. New York State Elec. & Gas Corp. v. McMahon (In re McMahon), 129 F.3d 93, 96 (2d Cir.1997). According to the Second Circuit, “Recoupment means a deduction from a money claim through a process whereby cross demands arising out of the same transaction are allowed to compensate one another and the balance only to be recovered.” Id. (quoting Nat’l Cash Register Co. v. Joseph, 299 N.Y. 200, 203, 86 N.E.2d 561 (1949)). In In re Leckie Smokeless Coal Co., the plan/fund had a right to collect premiums from the debtor because federal legislation provided that coal mine operators must contribute to the plan/fund. In re Leckie Smokeless Coal Co., 99 F.3d at 581. Because the debtor was a coal mine operator, the district court concluded that since the plan/ fund had statutory claims against the debtor for future premium payments, it had an interest in the debtor’s property. Id. The Fourth Circuit agreed, not because of the plan/fund’s right to demand money from the debtor, but because the right derived from the fact that the debtor put its assets to use in the coal mining industry. Id. at 581-82. Had the debtor chosen to use the assets for another purpose, the plan/fund would not have had the right to demand payments. Id. at 582. The term “interest” is intended to refer to obligations that are connected to, or arise from, the property being sold. See 3 Collier on Bankruptcy ¶ 363.06[1], at 363-45 (Lawrence P. King ed., 15th ed. rev.1997). The bankruptcy court in Eastern Virginia has considered a state statute which provided that a state agency had the right to recapture depreciation from operators of nursing homes if the operators realized a gain on the sale of their real property. In P.KR. Convalescent Ctrs., Inc. v. Commonwealth" }, { "docid": "16105365", "title": "", "text": "property, such as liens. See, e.g., In re White Motor Credit Corp., 75 B.R. 944, 948 (Bankr.N.D.Ohio 1987) (“General unsecured claimants including tort claimants, have no specific interest in a debtor’s property. Therefore, section 363 is inapplicable for sales free and clear of such claims.”); In re New England Fish Co., 19 B.R. 323, 326 (Bankr.W.D.Wash.1982) (same). However, the trend seems to be toward a more expansive reading of “interests in property” which “encompasses other obligations that may flow from ownership of the property.” 3 Collier on Bankruptcy ¶ 363.06[1]. In Folger Adam Sec., Inc. v. DeMatteis/MacGregor, JV, 209 F.3d 252 (3d Cir.2000), we addressed the issue of whether certain affirmative defenses to a claim for breach of contract constituted an interest in property within the meaning of section 363(f). Specifically, we were asked to decide “whether the affirmative defenses of setoff, recoupment, and other contract defenses ... constitute an ‘interest’ under section 363(f) of the Bankruptcy Code such that a sale of the debtors’ assets in a consolidated Bankruptcy Court auction free and clear, extinguished such affirmative defenses.... ” Id. at 253-54. We observed that there was no support in the case law for the proposition that a defense may be extinguished as a result of a free and clear sale. See id. at 261. Accordingly, we held that “a right of recoupment is a defense and not an interest and therefore is not extinguished by a § 363(f) sale.” Id. In arriving at this conclusion, we explored the significance of the Fourth Circuit’s decision in In re Leckie Smokeless Coal Co., 99 F.3d 573 (4th Cir.1996). In Leckie, the Fourth Circuit held that, irrespective of whether the purchasers of the debtors’ assets were successors in interest, under § 363(f), the Bankruptcy Court could properly extinguish all successor liability claims against the purchasers arising under the Coal Act by entering an order transferring the debtors’ assets free and clear of those claims. See id. at 576. The Fourth Circuit held that the two employer-sponsored benefit plans that sought to collect Coal Act premium payments from the debtors’ successors in" }, { "docid": "12594763", "title": "", "text": "Virginia’s depreciation-recoupment interest in the debtor’s property, even though that interest was unsecured by lien or otherwise). Contra Fairchild Aircraft Inc. v. Cambell (In re Fairchild Aircraft Corp.), 184 B.R. 910, 917-19 (Bankr.W.D.Tex.1995) (holding that section 363(f) applies only to “in rem interests which have attached to the property,” by way of either “the debtor’s consent to a security interest or the creditor’s attachment of the property resulting in a lien”). It is difficult to make further categorical observations concerning the intended meaning of the words “interest in” — indeed, the precise boundaries of the phrase likely will be defined only as the courts continue to apply it to the facts presented in the cases brought before them. Yet we hold that the Fund’s and Plan’s rights to collect premium payments from Appellees constitute interests in the assets that Appellees now wish to sell, or have sold already. Those rights are grounded, at least in part, in the fact that those very assets have been employed for coal-mining purposes: if Appellees had never elected to put their assets to use in the eoal-mining industry, and had taken up business in an altogether different area, the Plan and Fund would have no right to seek premium payments from them. Because there is therefore a relationship between (1) the Fund’s and Plan’s rights to demand premium payments from Appellees and (2) the use to which Appellees put their assets, we find that the Fund and Plan have interests in those assets within the meaning of section 363(f). C. Declaratory Judgments and Injunctions The Plan and Fund have argued that the district courts were stripped of subject matter jurisdiction by both the Anti-Injunction Act, 26 U.S.C. § 7421, and the tax-exclusion provision of the Declaratory Judgment Act, 28 U.S.C. § 2201. The Declaratory Judgment Act authorizes all United States courts to issue declaratory relief in cases within their jurisdiction “except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986[or] a proceeding under section 505 or 1146 of title 11.” 28 U.S.C. § 2201(a)." }, { "docid": "4169117", "title": "", "text": "core proceeding. Because the question before the court concerns the court’s' own order and various bankruptcy courts and their respective appellate courts have considered the right of recoupment in a bankruptcy context, no “unusual” issue of state law exists. E.The section 363(f) order The order provides for the sale of the Debtor’s Rochester office assets “free and clear of all liens and other interests.” General Accident’s alleged right of recoupment does not qualify as a “lien,” thus, the question is whether its right is an “interest” for section 363 purposes. A “trustee may sell property under subsection (b) or (c) of this section free and clear of any interest in such property of an entity other than the estate” only if one of the five conditions are met. 11 U.S.C. § 363(f) (emphasis added). Unfortunately, “courts have not yet settled upon a precise definition of the phrase ‘interest in such property.’ ” United Mine Workers of Am.1992 Benefit Plan v. Leckie Smokeless Coal Co. (In re Leckie Smokeless Coal Co.), 99 F.3d 573, 581 (4th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 1251, 137 L.Ed.2d 332 (1997). A narrow interpretation of the statute limits the phrase “interest in such property” to in rem interests which have attached to the property, i.e., liens and security interests. See Fairchild Aircraft Inc. v. Campbell (In re Fairchild Aircraft Corp.), 184 B.R. 910, 917-18 (Bankr.W.D.Tex.1995). Another view is that an “interest” in property attaches “to the property so as to cloud its title.” In re Wolverine Radio Co., 930 F.2d at 1147 (holding that the debtor’s experience rating was not an “interest” in the debtor’s property). One court has stated that the statute should not be interpreted so broadly that it includes anyone who has a general right to payment from the debtor and it should not be interpreted so narrowly that it only includes in rem interests. In re Leckie Smokeless Coal Co., 99 F.3d at 582 (emphasis added). The Fourth Circuit also stated that creditors holding unsecured claims do not have an interest in the property of the estate even though" }, { "docid": "15443265", "title": "", "text": "which required the bankruptcy court to construe the lease. Id. at 229-31. The combination of these factors rendered Marianne’s motion core. Id. at 231. The Court left open whether the presence of any one of these facts alone would render the proceeding core. Id. Two of the Petrie factors are present in this case. The resolution of the dispute between Morgan and the Fredericos rests, in the first instance, on the rights created under the Sale Order. In addition, Morgan’s request for declaratory and injunc-tive relief asks the Court to interpret and enforce the Sale Order by enjoining the Fredericos from proceeding with them successor liability claims. The presence of these two factors renders the dispute core. NWL Holdings, Inc. v. Eden Ctr., Inc. (In re Ames Dep’t Stores, Inc.), 317 B.R. 260, 271-72 (Bankr.S.D.N.Y.2004); see Jamaica Shipping Co. v. Orient Shipping Rotterdam, B.V. (In re Millenium Seacarriers, Inc.), 458 F.3d 92, 95 (2d Cir.2006). The Fredericos’ principal contrary authority, Zerand-Bernal Group, Inc. v. Cox, 23 F.3d 159 (7th Cir.1994), is inconsistent with the Supreme Court’s decision in Travelers, In re Portrait Corp. of Am., 406 B.R. 637, 641 n. 4 (Bankr.S.D.N.Y.2009); see Campbell v. Motors Liquidation Co. (In re Motors Liquidation Co. f/k/a/ Gen. Motors Corp.), 428 B.R. 43, 57 n. 17 (S.D.N.Y.2010), as well as the decision in Petrie. Accordingly, the Court has subject matter jurisdiction to interpret and enforce the Sale Order. B. The Scope and Effect of the Sale Order Section 863(f) of the Bankruptcy Code authorizes the trustee in certain circumstances to sell the estate’s interest in property “free and clear of any interest in such property of an entity other than the estate.” “Interests in property” as used in section 368(f) include “claims” that arise from the assets being sold. In re Chrysler LLC, 576 F.3d 108, 126 (2d Cir.2009), granting cert. & vacating judgment, Indiana State Police Pension Trust v. Chrysler LLC, — U.S. -, 130 S.Ct. 1015, 175 L.Ed.2d 614 (2009); In re Trans World Airlines, Inc., 322 F.3d 283, 289-90 (3d Cir.2003). Although § 363(f) is not limited to in rem" }, { "docid": "4650429", "title": "", "text": "examples of bankruptcy courts’ divergent rulings on this issue, compare, e.g., P.K.R. Convalescent Ctrs., Inc. v. Commonwealth of Va., Dept. of Med. Assistance Serv. (In re P.K.R. Convalescent Ctrs., Inc.), 189 B.R. 90, 94 (Bankr.E.D.Va.1995) (holding that Virginia's depreciation-recoupment interest in the debtor’s property was an “interest in property,’’ even though the interest was not a lien), and Am. Living Sys. v. Bonapfel (In re All Am. of Ashburn, Inc.), 56 B.R. 186, 189-90 (Bankr.N.D.Ga.1986) (holding that § 363(f) permitted the sale of assets free and clear and precluded successor liability in product liability suit against purchaser for cause of action that arose prior to date of sale), with Schwinn Cycling and Fitness, Inc. v. Benonis (In re Schwinn Bicycle Co.), 210 B.R. 747, 761 (Bankr.N.D.Ill.1997) (holding that § 363(f) “in no way protects the buyer from current or future product liability; it only protects the purchased assets from lien claims against those assets”), and Volvo White Truck Corp. v. Chambersburg Beverage, Inc. (In re White Motor Credit Corp.), 75 B.R. 944, 948 (Bankr.N.D.Ohio 1987) (stating that “[g]eneral unsecured claimants including tort claimants, have no specific interest in a debtor’s property” for purposes of § 363(f)). . In Leckie, the Fourth Circuit held that Coal Act premium payment obligations owed to employer-sponsored benefit plans were interests in property under § 363(f). 99 F.3d at 582. The Fourth Circuit explained \"while the plain meaning of the phrase 'interest in such property’ suggests that not all general rights to payment are encompassed by the statute, Congress did not expressly indicate that, by employing such language, it intended to limit the scope of section 363(f) to in rem interests, strictly defined, and [it would] decline to adopt such a restricted reading of the statute. ...” Id. . The Bankruptcy Code defines \"claim” as: (A) right to payment, whether or not such right is reduced to judgment, Iiquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not" }, { "docid": "4650413", "title": "", "text": "scope of the language “any interest in such property,” and the statute does not define the term. See, e.g., Precision Indus., Inc. v. Qualitech Steel SBQ, LLC, 327 F.3d 537, 545 (7th Cir.2003) (“The Bankruptcy Code does not define ‘any interest,’ and in the course of applying section 363(f) to a wide variety of rights and obligations related to estate property, courts have been unable to formulate a precise definition.”). In TWA the Third Circuit considered whether (1) employment discrimination claims and (2) a voucher program awarded to flight attendants in settlement of a class action constituted “interests” in property for purposes of § 363(f). See 322 F.3d at 285. The Third Circuit began its analysis by noting that bankruptcy courts around the country have disagreed about whether “any interest” should be defined broadly or narrowly. Id. at 288-89. The Third Circuit observed, however, that “the trend seems to be toward a more expansive reading of ‘interests in property which ‘encompasses other obligations that may flow from ownership of the property.’ ” Id. at 289 (quoting 3 Collier on Bankruptcy ¶ 363.06[1]); see also George W. Kuney, Misinterpreting Bankruptcy Code Section 363(f) and Undermining the Chapter 11 Process, 76 Am. Bankr.L.J. 235, 267 (2002) (“[T]he dominant interpretation is that § 363(f) can be used to sell property free and clear of claims that could otherwise be assertable against the buyer of the assets under the common law doctrine of successor liability.”). The Third Circuit reasoned that “to equate interests in property with only in rem interests such as liens would be inconsistent with section 363(f)(3), which contemplates that a lien is but one type of interest.” 322 F.3d at 290. After surveying its owns precedents and the Fourth Circuit’s decision in United Mine Workers of Am.1992 Benefit Plan v. Leckie Smokeless Coal Co. (In re Leckie Smokeless Coal Co.), 99 F.3d 573 (4th Cir.1996), the TWA court held that “[w]hile the interests of the [plaintiffs] in the assets of TWA’s bankruptcy estate are not interests in property in the sense that they are not in rem interests, ... they are" }, { "docid": "23610033", "title": "", "text": "re Wolverine Radio Co.), 930 F.2d 1132, 1147-48 (6th Cir.1991); Precision Indus., Inc. v. Qualitech Steel SBQ, LLC (In re Qualitech Steel Corp.), 327 F.3d 537, 545-46 (7th Cir.2003); Fairchild Aircraft Corp. v. Cambell (In re Fairchild Aircraft Corp.), 184 B.R. 910, 918 (Bankr. W.D.Tex.1995), vacated as moot on equitable grounds, 220 B.R. 909 (Bkrtcy.W.D.Tex.1998). See also Volvo White Truck Corp. v. Chambersburg Beverage, Inc. (In re White Motor Credit Corp.), 75 B.R. 944, 948 (Bankr.N.D.Ohio 1987) (concluding that 363(f) could not be utilized, but that section 105(a) could be used to effect 363 sale free and clear of claims). .405 B.R. at 111. . See 486-87, n. 19 above. . See, e.g., O’Brien v. State of Vermont (In re O’Brien), 184 F.3d 140, 142 (2d Cir.1999); Mangosoft, Inc. v. Oracle Corp., 525 F.3d 1327, 1330 (Fed.Cir.2008). . See Tr. of Arg. before Second Circuit, No. 09-2311 (2d Cir. June 5, 2009) (\"2d Cir. Arg. Tr.”) at 17-22 (current tort claims); 47-49 (current tort claims); 60-62 (current tort claims). . 2d Cir. Arg. Tr. at 22-26 (future and, to a limited extent, current, product liability claims); 26-29 (current and future asbestos claims); 45-46 (future asbestos and tort claims); 62-64 (future asbestos claims). . This Court has previously noted that it is hesitant to draw too much from the questions judges ask in argument. See In re Adelphia Commc’ns Corp., 336 B.R. 610, 636 n. 44 (\"Thoughts voiced by judges in oral argument do not always find their way into final decisions, often intentionally and for good reason.”) Thus the Court does not rely on anything that was said in the way of questions in the Chrysler appeal for the purpose of trying to predict the Circuit's thinking or leanings. This Court looks to the Chrysler argument questioning solely for the purpose of noting the issues that were before the Circuit, and that got its substantive attention. . The Court cannot agree with the suggestion that Chrysler is distinguishable because the purchaser there, Fiat, was a commercial entity, and that the purchaser here is an entity formed by the U.S. and" }, { "docid": "15443266", "title": "", "text": "Court’s decision in Travelers, In re Portrait Corp. of Am., 406 B.R. 637, 641 n. 4 (Bankr.S.D.N.Y.2009); see Campbell v. Motors Liquidation Co. (In re Motors Liquidation Co. f/k/a/ Gen. Motors Corp.), 428 B.R. 43, 57 n. 17 (S.D.N.Y.2010), as well as the decision in Petrie. Accordingly, the Court has subject matter jurisdiction to interpret and enforce the Sale Order. B. The Scope and Effect of the Sale Order Section 863(f) of the Bankruptcy Code authorizes the trustee in certain circumstances to sell the estate’s interest in property “free and clear of any interest in such property of an entity other than the estate.” “Interests in property” as used in section 368(f) include “claims” that arise from the assets being sold. In re Chrysler LLC, 576 F.3d 108, 126 (2d Cir.2009), granting cert. & vacating judgment, Indiana State Police Pension Trust v. Chrysler LLC, — U.S. -, 130 S.Ct. 1015, 175 L.Ed.2d 614 (2009); In re Trans World Airlines, Inc., 322 F.3d 283, 289-90 (3d Cir.2003). Although § 363(f) is not limited to in rem interests in property, it affords only in rem relief similar to 11 U.S.C. § 1141(c). See Chrysler LLC, 576 F.3d at 125-26. By its terms, § 363(f) cleanses the transferred assets of any attendant liabilities, and allows the buyer to acquire them without fear that an estate creditor can enforce its claim against those assets. In addition, § 363(f) has been interpreted to authorize the bankruptcy court to grant in personam relief, similar to the discharge under Bankruptcy Code § 1141(d), that exonerates the buyer from successor liability, including liability for tort claims. Motors Liquidation, 428 B.R. at 57-59. Extending the “free and clear” provisions in this manner serves two important bankruptcy policies. First, it preserves the priority scheme of the Bankruptcy Code and the principle of equality of distribution by preventing a plaintiff from asserting in personam successor liability against the buyer while leaving other creditors to satisfy their claims from the proceeds of the asset sale. Douglas v. Stamco, 363 Fed.Appx. 100, 102 (2d Cir.2010); Trans World Airlines, 322 F.3d at 292. Second," }, { "docid": "7175711", "title": "", "text": "from spawning any legal consequences.” See Russman v. Bd. of Educ. of Enlarged City Sch. Dist., 260 F.3d 114, 121-22 n. 2 (2d Cir. 2001) (“[VJacatur eliminates an appellate precedent that would otherwise control decision on a contested question throughout the circuit.”). We had not addressed the issue before Chrysler, and now that case is no longer controlling precedent. See 576 F.3d at 124 (“We have never addressed the scope of the language ‘any interest in such property,’ and the statute does not define the term.”). Rather than formulating a single precise definition for “any interest in such property,” courts have continued to address the phrase “on a case-by-case basis.” In re PBBPC, Inc., 484 B.R. 860, 867 (B.A.P. 1st Cir. 2013). At minimum, the language in § 363(f) permits the sale of property free and clear of in rem interests in the property, such as liens that attach to the property. See In re Trans World Airlines, Inc., 322 F.3d 283, 288 (3d Cir. 2003). But courts have permitted a “broader definition that encompasses other obligations that may flow from ownership of the property.” 3 Collier on Bankruptcy ¶ 363.06[1]. Sister courts have held that § 363(f) may be used to bar a variety of successor liability claims that relate to ownership of property: an “interest” might encompass Coal Act obligations otherwise placed upon a successor purchasing coal assets, In re Leckie Smokeless Coal Co., 99 F.3d 573, 581-82 (4th Cir. 1996), travel vouchers issued to settle an airline’s discrimination claims in a sale of airline assets, Trans World Airlines, 322 F.3d at 288-90, or a license for future use of intellectual property when that property is sold, FutureSource LLC v. Reuters Ltd., 312 F.3d 281, 285 (7th Cir. 2002). See generally Precision Indus., Inc. v. Qualitech Steel SBQ, LLC, 327 F.3d 537, 545 (7th Cir. 2003) (“[T]he term ‘interest’ is a broad term no doubt selected by Congress to avoid ‘rigid and technical definitions drawn from other areas of the law.’ ” (quoting Russello v. United States, 464 U.S. 16, 21, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983)))." }, { "docid": "12594762", "title": "", "text": "claims do not constitute ‘interests’ within the meaning of § 363(f).” Yadkin Valley Bank & Trust Co. v. McGee (In re Hutchinson ), 5 F.3d 750, 756 n. 4 (4th Cir.1998); see also Ninth Ave. Remedial Group, 195 B.R. at 729-32 (observing that a few courts have held that section 363(f) applies only to in rem interests, while numerous other courts have interpreted the statute more broadly, applying it, for example, to product liability and employment discrimination claims). Yet while the plain meaning of the phrase “interest in such property” suggests that not all general rights to payment are encompassed by the statute, Congress did not expressly indicate that, by employing such language, it intended to limit the scope of section 363(f) to in rem interests, strictly defined, and we decline to adopt such a restricted reading of the statute here. Accord P.K.R. Convalescent Centers v. Commonwealth of Virginia, Dep’t of Medical Assistance Servs. (In re P.K.R. Convalescent Centers), 189 B.R. 90, 92-94 (Bankr.E.D.Va.1995) (holding that section 363(f) permitted a sale free and clear of Virginia’s depreciation-recoupment interest in the debtor’s property, even though that interest was unsecured by lien or otherwise). Contra Fairchild Aircraft Inc. v. Cambell (In re Fairchild Aircraft Corp.), 184 B.R. 910, 917-19 (Bankr.W.D.Tex.1995) (holding that section 363(f) applies only to “in rem interests which have attached to the property,” by way of either “the debtor’s consent to a security interest or the creditor’s attachment of the property resulting in a lien”). It is difficult to make further categorical observations concerning the intended meaning of the words “interest in” — indeed, the precise boundaries of the phrase likely will be defined only as the courts continue to apply it to the facts presented in the cases brought before them. Yet we hold that the Fund’s and Plan’s rights to collect premium payments from Appellees constitute interests in the assets that Appellees now wish to sell, or have sold already. Those rights are grounded, at least in part, in the fact that those very assets have been employed for coal-mining purposes: if Appellees had never elected to" }, { "docid": "7175710", "title": "", "text": "363(b)(1). A sale pursuant to § 363(b) may be made “free and clear of any interest in such property” if any condition on a list of conditions is met. Id. § 363(f). “Yet the Code does not define the concept of ‘interest,’ of which the property may be sold free and clear,” 3 Collier on Bankruptcy ¶ 363.06[1], nor does it express the extent to which “claims” fall within the ambit of “interests.” New GM asserts that In re Chrysler LLC, 576 F.3d 108, 126 (2d Cir. 2009), resolved that successor liability claims are interests. New GM Br. 75. But Chrysler was vacated by the Supreme Court after it became moot during the certiorari process and remanded with instructions to dismiss the appeal as moot. See Ind. State Police Pension Tr. v. Chrysler LLC, 558 U.S. 1087, 130 S.Ct. 1015, 175 L.Ed.2d 614 (2009). The Supreme Court vacated Chrysler pursuant to United States v. Munsingwear, Inc., 340 U.S. 36, 41, 71 S.Ct. 104, 95 L.Ed. 36 (1950), which “prevent[s] a judgment, unreviewable because of mootness, from spawning any legal consequences.” See Russman v. Bd. of Educ. of Enlarged City Sch. Dist., 260 F.3d 114, 121-22 n. 2 (2d Cir. 2001) (“[VJacatur eliminates an appellate precedent that would otherwise control decision on a contested question throughout the circuit.”). We had not addressed the issue before Chrysler, and now that case is no longer controlling precedent. See 576 F.3d at 124 (“We have never addressed the scope of the language ‘any interest in such property,’ and the statute does not define the term.”). Rather than formulating a single precise definition for “any interest in such property,” courts have continued to address the phrase “on a case-by-case basis.” In re PBBPC, Inc., 484 B.R. 860, 867 (B.A.P. 1st Cir. 2013). At minimum, the language in § 363(f) permits the sale of property free and clear of in rem interests in the property, such as liens that attach to the property. See In re Trans World Airlines, Inc., 322 F.3d 283, 288 (3d Cir. 2003). But courts have permitted a “broader definition that encompasses" }, { "docid": "23610032", "title": "", "text": "involved in a bankruptcy proceeding. Id. at 55, 99 S.Ct. 914. But the Butner court laid out principles by which we determine what is property of the estate; it did not address the different issue of whether a state may impose liability on a transferee of estate property by reason of something the debtor did before the transfer. Moreover, Butner noted that provisions of the Code can and do sometimes trump state law. And section 363(f), for as much or as little as it covers, is exactly such a provision. In fact, 363(f) is a classic example of an instance where a \"federal interest requires a different result.” But-ner neither supports nor defeats either party's position here. . See, e.g., Chrysler, 405 B.R. at 111; In re Trans World Airlines, Inc., 322 F.3d 283, 288-90 (3d Cir.2003) (\"TWA\"); United Mine Workers of Am.1992 Benefit Plan v. Leckie Smokeless Coal Co. (In re Leckie Smokeless Coal Co.), 99 F.3d 573, 581-82 (4th Cir.1996). . See, e.g., Michigan Empl. Sec. Comm. v. Wolverine Radio Co., Inc. (In re Wolverine Radio Co.), 930 F.2d 1132, 1147-48 (6th Cir.1991); Precision Indus., Inc. v. Qualitech Steel SBQ, LLC (In re Qualitech Steel Corp.), 327 F.3d 537, 545-46 (7th Cir.2003); Fairchild Aircraft Corp. v. Cambell (In re Fairchild Aircraft Corp.), 184 B.R. 910, 918 (Bankr. W.D.Tex.1995), vacated as moot on equitable grounds, 220 B.R. 909 (Bkrtcy.W.D.Tex.1998). See also Volvo White Truck Corp. v. Chambersburg Beverage, Inc. (In re White Motor Credit Corp.), 75 B.R. 944, 948 (Bankr.N.D.Ohio 1987) (concluding that 363(f) could not be utilized, but that section 105(a) could be used to effect 363 sale free and clear of claims). .405 B.R. at 111. . See 486-87, n. 19 above. . See, e.g., O’Brien v. State of Vermont (In re O’Brien), 184 F.3d 140, 142 (2d Cir.1999); Mangosoft, Inc. v. Oracle Corp., 525 F.3d 1327, 1330 (Fed.Cir.2008). . See Tr. of Arg. before Second Circuit, No. 09-2311 (2d Cir. June 5, 2009) (\"2d Cir. Arg. Tr.”) at 17-22 (current tort claims); 47-49 (current tort claims); 60-62 (current tort claims). . 2d Cir. Arg. Tr. at" }, { "docid": "4650412", "title": "", "text": "The objectors can be divided into three groups: (1) plaintiffs with existing product liability claims against Chrysler; (2) plaintiffs with existing asbestos-related claims against Chrysler; and (3) lawyers undertaking to act on behalf of claimants who, although presently unknown and unidentified, might have claims in the future arising from Old Chrysler’s production of vehicles. We consider each group’s arguments in turn. A. Existing Product Liability Claims The Ad Hoc Committee of Consumer-Victims of Chrysler LLC and William Lovitz et al. challenge the foreclosing of New Chrysler’s liability for product defects in vehicles produced by Old Chrysler. Section 363(f) provides, in relevant part, that a “trustee may sell property ... free and clear of any interest in such property,” under certain circumstances. 11 U.S.C. § 363(f) (emphasis added). The objectors argue that personal injury claims are not “interests in property,” and that the district court’s reliance on In re Trans World Airlines, Inc., 322 F.3d 283 (3d Cir.2003) (“TWA ”), which advances a broad reading of “interests in property,” was misplaced. We have never addressed the scope of the language “any interest in such property,” and the statute does not define the term. See, e.g., Precision Indus., Inc. v. Qualitech Steel SBQ, LLC, 327 F.3d 537, 545 (7th Cir.2003) (“The Bankruptcy Code does not define ‘any interest,’ and in the course of applying section 363(f) to a wide variety of rights and obligations related to estate property, courts have been unable to formulate a precise definition.”). In TWA the Third Circuit considered whether (1) employment discrimination claims and (2) a voucher program awarded to flight attendants in settlement of a class action constituted “interests” in property for purposes of § 363(f). See 322 F.3d at 285. The Third Circuit began its analysis by noting that bankruptcy courts around the country have disagreed about whether “any interest” should be defined broadly or narrowly. Id. at 288-89. The Third Circuit observed, however, that “the trend seems to be toward a more expansive reading of ‘interests in property which ‘encompasses other obligations that may flow from ownership of the property.’ ” Id. at 289" }, { "docid": "16105364", "title": "", "text": "accept a money satisfaction of their claims. We agree with the Airlines. A. Interest in Property The contentions of the parties require us to consider whether the claims in this case constitute an interest in property as understood within the meaning of § 363(f). Section 363(f) of the Bankruptcy Code provides, in pertinent part: The trustee may sell property ... free and clear of any interest in such property of an entity other than the estate, only if— (1) applicable nonbankruptcy law permits sale of such property free and clear of such interest; (2) such entity consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; or (5) such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest. 11 U.S.C. § 363(f) (emphasis added). Some courts have narrowly interpreted interests in property to mean in rem interests in property, such as liens. See, e.g., In re White Motor Credit Corp., 75 B.R. 944, 948 (Bankr.N.D.Ohio 1987) (“General unsecured claimants including tort claimants, have no specific interest in a debtor’s property. Therefore, section 363 is inapplicable for sales free and clear of such claims.”); In re New England Fish Co., 19 B.R. 323, 326 (Bankr.W.D.Wash.1982) (same). However, the trend seems to be toward a more expansive reading of “interests in property” which “encompasses other obligations that may flow from ownership of the property.” 3 Collier on Bankruptcy ¶ 363.06[1]. In Folger Adam Sec., Inc. v. DeMatteis/MacGregor, JV, 209 F.3d 252 (3d Cir.2000), we addressed the issue of whether certain affirmative defenses to a claim for breach of contract constituted an interest in property within the meaning of section 363(f). Specifically, we were asked to decide “whether the affirmative defenses of setoff, recoupment, and other contract defenses ... constitute an ‘interest’ under section 363(f) of the Bankruptcy Code such that a sale of the debtors’ assets in a consolidated Bankruptcy Court auction free and clear," }, { "docid": "4169118", "title": "", "text": "Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 1251, 137 L.Ed.2d 332 (1997). A narrow interpretation of the statute limits the phrase “interest in such property” to in rem interests which have attached to the property, i.e., liens and security interests. See Fairchild Aircraft Inc. v. Campbell (In re Fairchild Aircraft Corp.), 184 B.R. 910, 917-18 (Bankr.W.D.Tex.1995). Another view is that an “interest” in property attaches “to the property so as to cloud its title.” In re Wolverine Radio Co., 930 F.2d at 1147 (holding that the debtor’s experience rating was not an “interest” in the debtor’s property). One court has stated that the statute should not be interpreted so broadly that it includes anyone who has a general right to payment from the debtor and it should not be interpreted so narrowly that it only includes in rem interests. In re Leckie Smokeless Coal Co., 99 F.3d at 582 (emphasis added). The Fourth Circuit also stated that creditors holding unsecured claims do not have an interest in the property of the estate even though they have a claim against the estate. Id. at 581. The Second Circuit has not defined an “interest” in property for purposes of Code § 363(f) and neither the parties nor the court found cases discussing recoupment as an “interest” in property. Recoupment and set-off rights are usually determined by state law. New York State Elec. & Gas Corp. v. McMahon (In re McMahon), 129 F.3d 93, 96 (2d Cir.1997). According to the Second Circuit, “Recoupment means a deduction from a money claim through a process whereby cross demands arising out of the same transaction are allowed to compensate one another and the balance only to be recovered.” Id. (quoting Nat’l Cash Register Co. v. Joseph, 299 N.Y. 200, 203, 86 N.E.2d 561 (1949)). In In re Leckie Smokeless Coal Co., the plan/fund had a right to collect premiums from the debtor because federal legislation provided that coal mine operators must contribute to the plan/fund. In re Leckie Smokeless Coal Co., 99 F.3d at 581. Because the debtor was a coal mine operator, the district" }, { "docid": "23610031", "title": "", "text": "place heavy reliance on Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979), see Indiv. Accident Litigants Br. 8, suggesting that Butner requires deference to state law that might impose successor liability and that this would require excluding successor liability damages claims from any definition of \"interest.” But the Court cannot agree. First, when quoted in full, Butner (whose bottom line was that the issue of whether a security interest extended to rents derived from the property was governed by state law) stated: The Bankruptcy Act does include provisions invalidating certain security interests as fraudulent, or as improper preferences over general creditors. Apart from these provisions, however, Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law. 440 U.S. at 54, 99 S.Ct. 914. Butner further stated (in language the Individual Accident Litigants did not quote): Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding. Id. at 55, 99 S.Ct. 914. But the Butner court laid out principles by which we determine what is property of the estate; it did not address the different issue of whether a state may impose liability on a transferee of estate property by reason of something the debtor did before the transfer. Moreover, Butner noted that provisions of the Code can and do sometimes trump state law. And section 363(f), for as much or as little as it covers, is exactly such a provision. In fact, 363(f) is a classic example of an instance where a \"federal interest requires a different result.” But-ner neither supports nor defeats either party's position here. . See, e.g., Chrysler, 405 B.R. at 111; In re Trans World Airlines, Inc., 322 F.3d 283, 288-90 (3d Cir.2003) (\"TWA\"); United Mine Workers of Am.1992 Benefit Plan v. Leckie Smokeless Coal Co. (In re Leckie Smokeless Coal Co.), 99 F.3d 573, 581-82 (4th Cir.1996). . See, e.g., Michigan Empl. Sec. Comm. v. Wolverine Radio Co., Inc. (In" } ]

[ { "docid": "7685138", "title": "", "text": "medical expenses, annoyance, in convenience, and disturbance, a disruption of their daily lives, a loss of the use and quiet enjoyment of their properties, an increased risk of cancer and other diseases, emotional distress, and other damages. Id. at ¶ 66. They seek compensatory damages, reimbursement for response costs, civil penalties, exemplary damages, costs, and interest as well as “an order that defendants, at defendants’ expense, take such remedial actions as are necessary to abate the pollution of the environment in and around the Chromatex and Continental sites_” Id. at pp. 28-29. Defendant Chromatex, Inc. filed its motion to dismiss on January 18, 1989. See documents 38-40 of record. A similar motion was submitted by defendant Continental White Cap, Inc. on February 13, 1989. See document 48 of record. Plaintiffs noted their opposition to the motions on February 2, 1989 and February 24, 1989, respectively. See documents 45, 46, and 55 of record. Defendant Chromatex filed its reply brief on February 15, 1989, and defendant Continental White Cap did the same on March 13, 1989. See documents 51 and 58 of record, respectively. These motions are now ripe for disposition. DISCUSSION In reviewing a motion to dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). The complaint may be dismissed only if it appears that plaintiffs cannot establish any set of facts in support of their claims which would entitle them to relief. Truhe v. Rupell, 641 F.Supp. 57, 58 (M.D.Pa.1985) (Rambo, J.). Because plaintiffs assert several claims against defendants, each claim must be examined in seriatim to determine if that claim should withstand a motion to dismiss. Kuchka v. Kile, 634 F.Supp. 502, 506 (M.D.Pa.1985) (Nealon, C.J.). CERCLA A. Response Costs In discussing a claim for response costs under CERCLA, the Third Circuit Court of Appeals has stated as follows: CERCLA is not a paradigm of clarity" } ]

[ { "docid": "5301714", "title": "", "text": "threats to public health or welfare or the environment. 40 C.F.R. § 300.65 (1986). There are genuine issues of material fact with regard to Reading’s compliance with § 300.65. Conrail argues that regardless of whether the action is characterized as a removal and regardless of whether the require- merits of § 300.65 were met, Reading must have conducted a “CERCLA quality” cleanup in order to recover any of its response costs. EPA defines CERCLA quality cleanup as follows: In order to achieve a ‘CERCLA-quality cleanup,’ the action must satisfy the three basic remedy selection requirements of CERCLA section 121(b)(1)—i.e., the remedial action must be ‘protective of human health and the environment,’ utilize ‘permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable,’ and be ‘cost-effective’—attain applicable and relevant and appropriate requirements (ARARs) (CERCLA section 121(d)(4), and provide for meaningful public participation. 55 Fed.Reg. 8793 (1990). Specifically, Conrail contends that Reading did not provide for meaningful public participation or follow CERCLA’s remedy selection requirements. As the language above makes clear, the three basic remedy selection requirements only apply to remedial actions. Moreover, Reading has certainly raised a genuine issue of material fact regarding meaningful public participation. See, Tr. of City Council meeting, Reading Exh. 66, OHCS Report, Reading Exh. 33. Because there are genuine issues of material fact concerning the possible removal action, the court need not consider whether Reading’s cleanup, if a remedial action, substantially complied with NCP requirements. X. HSCA Claims SEPTA advances a number of arguments in support of its motion for summary judgment on Reading’s HSCA claims. Each argument will be discussed in turn. Private right of action SEPTA submits that no private right of action exists under HSCA. The court rejected this argument in its March 3, 1992 order and has been presented \"with no reason to change its ruling. See, Toole v. Gould, Inc., 764 F.Supp. 985 (M.D.Pa.1991); General Electric Environmental Services, Inc. v. Envirotech Corporation, 763 F.Supp. 113 (M.D.Pa.1991); Lutz v. Chromatex, Inc., 725 F.Supp. 258 (M.D.Pa.1989). Consumer product exception According to SEPTA, HSCA’s consumer products exception should be" }, { "docid": "13873549", "title": "", "text": "costs cause by the release or violation. The board in any court of competent jurisdiction is hereby given jurisdiction over actions to recover response costs. 35 Pa.S.A. § 6020.1101. . § 9607. Liability (a) Covered persons; scope; recoverable costs and damages; interest rate; “comparable maturity” date Notwithstanding any other provision or rule of law, and subject only to defenses set forth in subsection (b) of this section — ... .... [a responsible party shall be liable for — ] (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and (D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title. 42 U.S.C. § 9607. . Specifically, it is stated in Lutz 11: Contrary to plaintiffs’ suggestion, section 702(a) of the Act and section 107(a) of CERC-LA are not \"identical”. Section 107(a) of CERCLA begins with the following preface: \"Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section....” While section 107(a) of CERCLA has been given a broad interpretation based in part on this opening clause, no such provision is found in section 702 of the Act. Lutz II, supra at 265. (citations omitted) . By relying on a combination of provisions, rather than solely on section 6020.702, the Envi-rotech court implicitly agreed with the holding in Lutz II that the liability provision of HSCA does not by itself create a private right of action. See Lutz II, 725 F.Supp. at 265 (M.D.Pa.1989). This differs from the analysis rendered by the federal courts concerning a private right of action under CERCLA. . The deleted section 509 read: Any person responsible for a release of a" }, { "docid": "13873546", "title": "", "text": "v. Gould, Inc., 750 F.Supp. 1233 (M.D.Pa. 1990). . There have been three published opinions concerning the Chromatex site in West Hazelton, Pennsylvania. For purposes of this memorandum, they are identified as Lutz v. Chromatex, Inc., 718 F.Supp. 413 (M.D.Pa.1989) (Lutz I): Lutz v. Chromatex, Inc., 725 F.Supp. 258 (M.D. Pa. 1989) (Lutz II): and Lutz v. Chromatex, Inc., 730 F.Supp. 1328 (M.D.Pa.1989) (Lutz III). . There have been four opinions issued by the Honorable Herbert J. Hutton concerning the Fallowfield site in Chester County, Pennsylvania. For purposes of this memorandum, only two of these opinions are cited and will be referred to as Fallowfield v. Strunk, Civ. No. 89-8644, slip op. (E.D.Pa. April 23, 1990) (1990 WL 52745) (Fallowfield I) and Fallowfield v. Strunk, Civ. No. 89-8644 and 90-4431, slip op. (E.D.Pa. Feb. 11, 1991) (1991 WL 17793) (Fallowfield II). . § 6020.702. Scope of Liability (a) General rule. — A person who is responsible for a release or threatened release of a hazardous substance from a site as specified in section 701 is strictly liable for the following response costs and damages which result from the release or threatened release or to which the release or threatened release significantly contributes: (1) Costs of interim response which are reasonable in light of the information available to the department at the time the interim response action was taken. (2) Reasonable and necessary or appropriate costs of remedial response incurred by the United States, the Commonwealth or a political subdivision. (3) Other reasonable and necessary or appropriate cosjs of response incurred by any other person. (4) Damages for injury to, destruction of or loss of natural resources within this Commonwealth or a political subdivision. This paragraph includes the reasonable costs of assessing injury, destruction or loss resulting from such a release. (5) The cost of a health assessment or health effects study. 35 Pa.S.A. § 6020.702(a). . § 6020.507. Recovery of response costs (a) General rule. — A responsible person under Section 701 or a person who causes a release or a threat of a release of a hazardous substance or" }, { "docid": "4104155", "title": "", "text": "the court denied the defendants’ motion to dismiss the second amended complaint and granted the plaintiff’s request for leave to file the third amended complaint, adding Count X. The claim under HSCA. See documents 95 and 96 of record; See also Lutz v. Chromatex, 725 F.Supp. 258, 267 (M.D.Pa.1989) (Nealon, J.). In allowing the plaintiffs to add the HSCA count to their complaint, the court pointed out that it expressed “[no] opinion concerning the potential merit of plaintiffs’ claims nor d[id] it seek to foreclose a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Lutz, 725 F.Supp. at 267. On November 2, 1989, defendants Cher-enson, Siegel, Shulman, and Valmont filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) seeking to dismiss Count X of the third amended complaint for failure to state a claim. See document 100 of record. On November 3, 1989, defendants Chromatex and Continental filed a motion to dismiss Count X and a supporting memo randum. See documents 101 and 102 of record. Plaintiffs filed a response and brief in opposition to these motions on November 16, 1989. See documents 105 and 106 of record. A reply brief was filed by the defendants on November 28, 1989. See document 108 of record. On January 22, 1990, Allsteel joined in the motion filed by Chromatex and Continental. See document 111 of record. All the documents necessary for consideration of the instant motions are now before the court. Accordingly, the motions are now ripe for disposition. II. Discussion In reviewing a motion to dismiss a complaint for failure to state a claim under Rule 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). The complaint may be dismissed only if it appears that plaintiffs cannot establish any set of facts in support of their claims which would entitle them to relief. Truhe v. Rupell, 641 F.Supp. 57, 58 (M.D.Pa.1985) (Rambo, J.) Count X of plaintiffs third amended" }, { "docid": "13873500", "title": "", "text": "the first time the issue of whether a private cause of action accrues under HSCA. Concentrating mainly on the language of the statute, three particular sections of HSCA were examined: section 702 on the scope of liability ; section 507 on the recovery of response costs ; and section 1101 concerning public nuisances. It had been suggested by the Plaintiffs that the liability provision of section 702 standing alone creates a private right of action. In the alternative, it was further argued that section 702 in conjunction with either section 507 or section 1101 provide for such a right. In its analysis, the Lutz II court expressly rejected the argument that section 702(a)(3) by itself provides a private remedy for the recovery of response costs. Lutz, 725 F.Supp. at 264-265. Plaintiffs argued that section 702(a)(3) of HSCA contained language identical to that in section 107(a)(4)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a)(4)(B), which has been uniformly held to create a private cause of action to recover response costs. In rejecting the argument, the Lutz court cites two primary reasons. First, section 702(a) of HSCA and section 107(a) of CERCLA are not identical since the federal provision begins with a broad, all encompassing preface not includ ed in HSCA. Id. citing Pinole Point Properties, Inc. v. Bethlehem Steel Corp., 596 F.Supp. 283, 288 (N.D.Cal.1984). Second, section 107 and other sections of CERCLA specifically refer to actions brought under section 107, whereas HSCA merely refers to civil actions brought under sections 507 and 1101, not section 702. Id. at 265. At the conclusions of Lutz II, the court left open the possibility that a private cause of action may exist by the interaction of sections 1101 and 107. That door was closed, however, in Lutz III, 730 F.Supp. 1328 (M.D.Pa.1990). In its final rejection of the private right theory, Lutz III examined the language of HSCA, compared it with the provisions of the Pennsylvania Solid Waste Management Act (“SWMA”), and attempted to interpret the legislative history in order to gauge the intent of the General" }, { "docid": "4104159", "title": "", "text": "or threat of a release of a hazardous substance or causes a public nuisance under this act or causes a release or a substantial threat of release of a contaminant which presents a substantial danger to the public health or safety or the environment, or causes a release of a nonhazardous substance pursuant to section 501(g) shall be liable for the response costs and for damages to natural resources. The department, a Commonwealth agency, or a municipality which undertakes to abate a public nuisance under this act or take a response action may recover those response costs and natural resource damages in an action in equity brought before a court of competent jurisdiction. In addition, the [Environmental Hearing Board of the Commonwealth] is given jurisdiction over actions by the department to recover response costs and damages to natural resources. 35 P.S. § 6020.507(a). (Purdon’s Supp. 1989) (footnotes omitted). In turn, section 1101 of the HSCA provides as follows: [a] release of a hazardous substance or a violation of any provision, regulation, order or response approved by the department under this act shall constitute a public nuisance. Any person allowing such a violation shall be liable for the response costs caused by the release or the violation. The board and any court of competent jurisdiction is hereby given jurisdiction over actions to recover the response costs. 35 P.S. § 6020.1101. (Purdon’s Supp.1989). In the brief in support of their motion to dismiss, defendants maintain that Count X of the third amended complaint must be dismissed since the above provisions of the HSCA create no private cause of action for response costs. See document 102 of record at pp. 5-26. Alternatively, defendants contend that even if the provisions of the HSCA are construed to create a private cause of action, such an action cannot be maintained in this case since plaintiffs have failed to plead the prerequisites to such an action required by the HSCA. See id. at pp. 27-30. Plaintiffs oppose the motion to dismiss, arguing that the provisions of the HSCA at issue in this case clearly create a private" }, { "docid": "4104160", "title": "", "text": "by the department under this act shall constitute a public nuisance. Any person allowing such a violation shall be liable for the response costs caused by the release or the violation. The board and any court of competent jurisdiction is hereby given jurisdiction over actions to recover the response costs. 35 P.S. § 6020.1101. (Purdon’s Supp.1989). In the brief in support of their motion to dismiss, defendants maintain that Count X of the third amended complaint must be dismissed since the above provisions of the HSCA create no private cause of action for response costs. See document 102 of record at pp. 5-26. Alternatively, defendants contend that even if the provisions of the HSCA are construed to create a private cause of action, such an action cannot be maintained in this case since plaintiffs have failed to plead the prerequisites to such an action required by the HSCA. See id. at pp. 27-30. Plaintiffs oppose the motion to dismiss, arguing that the provisions of the HSCA at issue in this case clearly create a private cause of action. See document 106 of record at pp. 2-8. Moreover, plaintiffs’ argument continues, there are no statutory prerequisites which would bar the bringing of an action for response costs under the HSCA in the present case. See id. at pp. 8-9. The court will examine each of these arguments, in turn. As the court noted in its Memorandum of October 5, 1989, in light of the recent enactment of the HSCA, the issue of whether its provisions create a private cause of action is one of first impression. Lutz, 725 F.Supp. 264. Initially, it is clear that § 507(a) of the HSCA does not, by itself, create a private cause of action. The only parties authorized to bring suit under § 507 are “[t]he department [Department of Environmental Resources (DER) ], a Commonwealth agency, or a municipality ...” 35 P.S. § 6020.507(a). Thus, plaintiffs cannot rely exclusively on § 507(a) to support Count X of their complaint. Similarly, as the court concluded in its October 5, 1989 Memorandum, § 702(a) does not, by" }, { "docid": "2241177", "title": "", "text": "award and the legislative history of CERCLA concurs. Ellman v. Woo, 1991 WL 274838 at * 6 (E.D.Pa. December 16, 1991); Fallowfield Develoyment Corp. v. Strunk, 766 F.Supp. 335 (E.D.Pa.1991). Plaintiffs also make their requests for attorney fees and expert fees under HSCA, 35 Pa.Stat. § 6020.1115(b). The language of that statute does not support plaintiffs’ interpretation. The relevant section, § 6020.702(a), allows recovery of “(3) Other reasonable and necessary or appropriate cost of response incurred by any other person.” Courts have implied a private cause of action from this provision. E.g. Toole v. Gould, Inc., 764 F.Supp. 985 (M.D.Pa.1991). It is clear, however, that private recovery is allowed only for “costs of response.” We look then at the statute’s definition of “response.” No language in that definition, 35 Pa.Stat. § 6020.103, lends credibility to plaintiff’s claim for attorney fees. Further, HSCA expressly allows the Commonwealth to recover legal fees. § 6020.507(b). Certainly, had it so intended, the legislature could have included a legal fee provision for private suits. It did not and we will not imply one. The request for attorney fees in Counts I and II of both complaints will, therefore, be dismissed. Plaintiffs also request that defendants bear the cost of plaintiffs’ expert witnesses. Defendants argue that fees for expert witnesses are litigation costs, and that they are not compensable under CERCLA. We agree. In Cook v. Rockwell Int’l Corp., 755 F.Supp. 1468 (D.Colo1991), the court held that “[a] plaintiff who has incurred no costs, except for litigation expenses, prior to the filing of a CERCLA action has incurred no ‘necessary costs of response’ under § 9607(a).” Id. at 1476. Response costs under CERCLA refer to expenses of cleanup, not the expenses of preparing for a lawsuit. B. Health Risk Assessments Plaintiffs argue that they have incurred great expense for the preparation of formal health risk assessments. For the same reasons we cited earlier, we do not believe Congress intended such costs to be included in “response costs” when it enacted CERCLA. The statutory definition of response is “remove, removal, remedy, and remedial action ...” 42 U.S.C." }, { "docid": "4104158", "title": "", "text": "injury to, destruction of or loss of natural resources within this Commonwealth or belonging to, managed by, controlled by or appertaining to the United States, the Commonwealth or a political subdivision. This paragraph includes the reasonable costs of assessing injury, destruction or loss resulting from such a release. (5) The cost of a health assessment or health effects study. 35 P.S. § 6020.702(a). (Purdon’s Supp. 1989) (footnote omitted) Plaintiffs’ request for response costs in Count X implicates §§ 702(a)(3) and (5). See document 76 of record at ¶ 121-127. Specifically, plaintiffs seek to recover for “health assessments and medical surveillance of plaintiffs”, “health effect studies of plaintiffs and the population affected by the releases”, and response activities alleged in connection with their federal cause of action pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA). See id. at ¶126; see also id. at ¶ 65-70. Section 507(a) of the HSCA reads as follows: A responsible person under section 701 or person who causes a release or threat of a release of a hazardous substance or causes a public nuisance under this act or causes a release or a substantial threat of release of a contaminant which presents a substantial danger to the public health or safety or the environment, or causes a release of a nonhazardous substance pursuant to section 501(g) shall be liable for the response costs and for damages to natural resources. The department, a Commonwealth agency, or a municipality which undertakes to abate a public nuisance under this act or take a response action may recover those response costs and natural resource damages in an action in equity brought before a court of competent jurisdiction. In addition, the [Environmental Hearing Board of the Commonwealth] is given jurisdiction over actions by the department to recover response costs and damages to natural resources. 35 P.S. § 6020.507(a). (Purdon’s Supp. 1989) (footnotes omitted). In turn, section 1101 of the HSCA provides as follows: [a] release of a hazardous substance or a violation of any provision, regulation, order or response approved" }, { "docid": "4104154", "title": "", "text": "amended complaint. See document 66 of record. The complaint was timely submitted on June 29, 1989. See document 70 of record. Before the defendant’s time for responding to the second amended complaint had elapsed, plaintiffs submitted their motion for leave to file a third amended complaint. See documents 75 & 76 of record. In their motion, plaintiffs sought to add a tenth cause of action (Count X) based upon Pennsylvania’s Hazardous Sites Cleanup Act, 35 P.S. §§ 6020.101-.1305 (Purdon’s Supp. 1989). (The HSCA) Various defendants noted their opposition to such an amendment on July 25, 1989. See documents 84 and 87 of record. A reply brief was filed on behalf of the plaintiffs on August 8, 1989. See document 94 of record. Defendants also filed motions to dismiss the second amended complaint. See documents 78-81 of record. Plaintiffs responded to these motions on July 25, 1989. See documents 85 and 86 of record. On August 7, 1989, defendants submitted their reply briefs. See documents 92-93 of record. By Memorandum and Order dated October 5, 1989, the court denied the defendants’ motion to dismiss the second amended complaint and granted the plaintiff’s request for leave to file the third amended complaint, adding Count X. The claim under HSCA. See documents 95 and 96 of record; See also Lutz v. Chromatex, 725 F.Supp. 258, 267 (M.D.Pa.1989) (Nealon, J.). In allowing the plaintiffs to add the HSCA count to their complaint, the court pointed out that it expressed “[no] opinion concerning the potential merit of plaintiffs’ claims nor d[id] it seek to foreclose a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Lutz, 725 F.Supp. at 267. On November 2, 1989, defendants Cher-enson, Siegel, Shulman, and Valmont filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) seeking to dismiss Count X of the third amended complaint for failure to state a claim. See document 100 of record. On November 3, 1989, defendants Chromatex and Continental filed a motion to dismiss Count X and a supporting memo randum. See documents 101 and 102 of record. Plaintiffs filed a response and brief in opposition" }, { "docid": "1160976", "title": "", "text": "the HSCA citizen suit provision, the Court need not determine whether or not the HSCA prohibits a private cause of action. Thus, the Court will deny BP’s motion to dismiss a portion of Count II of the amended complaint. D. Motion to dismiss Count III: Pa. Tank Act The purpose of the Pa. Tank Act is to regulate the use of aboveground and underground storage tanks in the Commonwealth of Pennsylvania. See 35 Pa.S.A. § 6021.102. Section 6021.1305(c) of the Pa. Tank Act allows any person to commence a civil action to compel compliance with the Act or any rule or regulation promulgated pursuant to the Act. Specifically, § 6021.1305(c) provides that: Any person having an interest which is or may be affected may commence a civil action on his behalf to compel compliance with this act or any rule, regulation, order, or permit issued pursuant to this act by any owner, operator, landowner or occupier alleged to be in violation of any provision of this act or any rule, regulation, order, or permit issued pursuant to this act. 35 Pa.SA. § 6021.1305(c). In addition to providing citizens with the right to seek injunctive relief, § 6021.1305 further provides that: [t]he court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. 35 Pa.SA. § 6021.1305(f). BP contends that Graham’s claim under the Pa. Tank Act should be dismissed because “[n]o action pursuant to subsection (e) [the private action provision] may be commenced prior to 60 days after the plaintiff has given notice, in writing, of the violations to the department and to any alleged violator.” 35 Pa.SA. § 6021.1305(d). BP contends that Graham’s amended complaint fails to allege that the requisite notice was provided to the DER. Section 6021.1305(e) provides that the 60-day notice provisions of subsection (d) can be waived when the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect" }, { "docid": "4104162", "title": "", "text": "itself, create a cause of action for recovery of response costs by the person who sustained them. Lutz, 725 F.Supp. at 266. In reaching this conclusion, the court reasoned as follows: ... the Act [the HSCA] consistently refers to civil actions brought only under sections 507 or 1101. See 35 P.S. §§ 6020.702(b) (“amounts recoverable in an action under sections 507 and 1101 include interest on the amounts recoverable under [section 702(a) ]”), 6020.705(a)-(b) (“A person may seek contribution from a responsible person under section 701, during or following a civil action under section 507 or 1101”). 6020.-705(c)(1). When section 702 is discussed, it is merely treated as a listing of available response costs and damages. See id. §§ 6020.507(f)(1), 6020.707(c) (“Any person who reaches an agreement pursuant to this section shall be responsible only for that person’s proportional share of response costs and damages assessed under section 701”), 6020.709, 6020.-904(b). Thus, the language of the Act does not support the conclusion that section 702 itself provides a private remedy for the recovery of response costs. Id. Plaintiffs may not, therefore, rely exclusively on § 702 to support Count X of their complaint. Plaintiffs do not dispute the fact that §§ 507(a) and 702(a) do not, by themselves or in tandem, authorize a private cause of action under the HSCA. They do contend, however, that a private cause of action is created by § 1101 of HSCA and that the scope of liability which attaches to a “responsible person” under such a cause of action is set out in § 702(a). See document 106 of record. Defendants, on the other hand, argue that an analysis of Pennsylvania’s Solid Waste Management Act, 35 P.S. § 6018.101 et seq. (Purdon’s Supp.1989), (the SWMA), a statutory scheme which they allege to be parallel to the HSCA, compels the conclusion that no private right of action is created by § 1101 of the HSCA. See documents 102 and 108 of record. Initially, the court does find an analysis of the SWMA to be helpful in its examination of the HSCA. The “Enforcement and Remedies”" }, { "docid": "13873499", "title": "", "text": "undisputed conclusion universally embraced by all authorities. See General Electric Environmental Services, Inc. v. Envirotech Corporation, 763 F.Supp. 113 (M.D.Pa.1991) (Rambo, J.), 1991 WL 69417; Mattioni, Pennsylvania Environmental Law Handbook (2nd Edition 1990) at 203-205; Prendergast, Environmental Private Rights of Action in Pennsylvania, 42-51 (Pa.Bar Instit.1991); See also, amicus curiae brief of Pennsylvania Department of Environmental Resources in Fry, et al. v. Leech Tool & Dieworks, Inc., A.D. No. 90-403 (C.P. Crawford County). After reviewing the above cited matters, it would appear that there are two substantive sources representing the divergent opinions on this subject. They can be found in the Middle District of Pennsylvania cases of Lutz II & III and Envirotech, supra. Each are comprehensive and well structured decisions delineating the arguments for and against finding a private cause of action. There is little we can add to each and find it best to fully review them separately. 1. Lutz v. Chromatex, Inc. No Private Cause of Action In Lutz v. Chromatex, Inc., 725 F.Supp. 258 (M.D.Pa.1989) (Lutz II), the court considered for the first time the issue of whether a private cause of action accrues under HSCA. Concentrating mainly on the language of the statute, three particular sections of HSCA were examined: section 702 on the scope of liability ; section 507 on the recovery of response costs ; and section 1101 concerning public nuisances. It had been suggested by the Plaintiffs that the liability provision of section 702 standing alone creates a private right of action. In the alternative, it was further argued that section 702 in conjunction with either section 507 or section 1101 provide for such a right. In its analysis, the Lutz II court expressly rejected the argument that section 702(a)(3) by itself provides a private remedy for the recovery of response costs. Lutz, 725 F.Supp. at 264-265. Plaintiffs argued that section 702(a)(3) of HSCA contained language identical to that in section 107(a)(4)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a)(4)(B), which has been uniformly held to create a private cause of action to recover response costs." }, { "docid": "4104161", "title": "", "text": "cause of action. See document 106 of record at pp. 2-8. Moreover, plaintiffs’ argument continues, there are no statutory prerequisites which would bar the bringing of an action for response costs under the HSCA in the present case. See id. at pp. 8-9. The court will examine each of these arguments, in turn. As the court noted in its Memorandum of October 5, 1989, in light of the recent enactment of the HSCA, the issue of whether its provisions create a private cause of action is one of first impression. Lutz, 725 F.Supp. 264. Initially, it is clear that § 507(a) of the HSCA does not, by itself, create a private cause of action. The only parties authorized to bring suit under § 507 are “[t]he department [Department of Environmental Resources (DER) ], a Commonwealth agency, or a municipality ...” 35 P.S. § 6020.507(a). Thus, plaintiffs cannot rely exclusively on § 507(a) to support Count X of their complaint. Similarly, as the court concluded in its October 5, 1989 Memorandum, § 702(a) does not, by itself, create a cause of action for recovery of response costs by the person who sustained them. Lutz, 725 F.Supp. at 266. In reaching this conclusion, the court reasoned as follows: ... the Act [the HSCA] consistently refers to civil actions brought only under sections 507 or 1101. See 35 P.S. §§ 6020.702(b) (“amounts recoverable in an action under sections 507 and 1101 include interest on the amounts recoverable under [section 702(a) ]”), 6020.705(a)-(b) (“A person may seek contribution from a responsible person under section 701, during or following a civil action under section 507 or 1101”). 6020.-705(c)(1). When section 702 is discussed, it is merely treated as a listing of available response costs and damages. See id. §§ 6020.507(f)(1), 6020.707(c) (“Any person who reaches an agreement pursuant to this section shall be responsible only for that person’s proportional share of response costs and damages assessed under section 701”), 6020.709, 6020.-904(b). Thus, the language of the Act does not support the conclusion that section 702 itself provides a private remedy for the recovery of response" }, { "docid": "4104157", "title": "", "text": "complaint purports to state a claim for relief under the HSCA, a statutory scheme recently enacted by the Pennsylvania General Assembly, taking effect on December 19, 1989. See document 76 of record. The following three sections of the HSCA are involved in plaintiffs’ claim: § 702(a); § 507(a); and § 1101. Section 702(a) of the HSCA provides as follows: A person who is responsible for a release or threatened release of a hazardous substance from a site as specified in section 701 is strictly liable for the following response costs and damages which result from the release or threatened release or to which the release or threatened release significantly contributes: (1) Costs of interim response which are reasonable in light of the information available to the department at the time the interim response action was taken. (2) Reasonable and necessary or appropriate costs of remedial response incurred by the United States, the Commonwealth or a political subdivision. (3) Other reasonable and necessary or appropriate costs of response incurred by any other person. (4) Damages for injury to, destruction of or loss of natural resources within this Commonwealth or belonging to, managed by, controlled by or appertaining to the United States, the Commonwealth or a political subdivision. This paragraph includes the reasonable costs of assessing injury, destruction or loss resulting from such a release. (5) The cost of a health assessment or health effects study. 35 P.S. § 6020.702(a). (Purdon’s Supp. 1989) (footnote omitted) Plaintiffs’ request for response costs in Count X implicates §§ 702(a)(3) and (5). See document 76 of record at ¶ 121-127. Specifically, plaintiffs seek to recover for “health assessments and medical surveillance of plaintiffs”, “health effect studies of plaintiffs and the population affected by the releases”, and response activities alleged in connection with their federal cause of action pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (CERCLA). See id. at ¶126; see also id. at ¶ 65-70. Section 507(a) of the HSCA reads as follows: A responsible person under section 701 or person who causes a release" }, { "docid": "4104167", "title": "", "text": "Establish independent authority for the department ... to take other appropriate response actions and recover from responsible persons its costs for conducting the responses. 35 P.S. § 6020.102(12)(ii) (Purdon’s Supp. 1989). (emphasis added) Based upon each of the above considerations, the court concludes that no private cause of action is created by § 1101 of the HSCA. While the resolution of this issue would be much simpler had the legislature expressly excluded private citizens from § 1101, the court finds the conclusion that no private cause of action was created by § 1101 to be in keeping with the statutory framework and stated policy of the HSCA. Moreover, without more explicit authorization from the Pennsylvania General Assembly, the court is not free to engraft an additional right of action upon statutory provisions which do not contemplate such a right. See Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1150 (D.C.Pa.1982) (holding that a city has no right of action for damages under Pennsylvania Clean Streams Law). III. Conclusion For all of the above reasons, the motions of the defendants for dismissal of Count X of the plaintiffs third amended complaint will be granted. . Defendants Cherenson, Siegel, Shulman and Valmont adopted the arguments set forth in the memorandum of Chromatex and Continental in support of their motion to dismiss. See document 100 of record. . In addition to joining in the instant motion to dismiss, Allsteel seeks to have Counts II and III of the amended complaint dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). Because this issue has not yet been briefed, the court will not consider it today." }, { "docid": "4104165", "title": "", "text": "techniques set forth therein. See id. Additionally, the Fleck court found that the legislature did consider private citizens when enacting the SWMA and accordingly, provided them with a right of intervention in actions brought initially by the DER. See id. at 425, 543 A.2d at 152. (citing 35 P.S. § 6018.615). As with the “Enforcement and Remedies” section of the SWMA, the legislature, in the corresponding provisions of the HSCA, repeatedly refers to the DER as the “person” responsible for pursuing the remedies and using the tools of enforcement provided for in that section. See e.g. 35 P.S. § 6020.1102(a) (“The department shall issue orders ... ); 35 P.S. § 6020.1103(a) (“... the department may institute a suit in equity in the name of the Commonwealth ...”); 35 P.S. § 6020.1104(a) (“... the department may assess a civil penalty ... ”). Moreover, like § 615 of the SWMA, the legislature provided for the interests of private citizens in the HSCA by affording them a right to intervene in an action brought under the act. See 35 P.S. § 6020.1111. Thus, the court concludes that, if confronted with the issue, Pennsylvania courts would conclude, as they have with the SWMA, that the legislature did not intend to create a private cause of action by enacting § 1101 of the HSCA. This conclusion is bolstered by the legislative history of the HSCA. As the defendants point out, an examination of the legislative history of the HSCA reveals that the legislature, in drafting the HSCA, deleted a section from an earlier version of the bill which expressly granted a “private cause of action” for response costs. See H.B. 1852, Printers No. 3428, § 509. Additionally, and perhaps most persuasively, the language of § 102 of the HSCA, the Declaration of Policy, supports a conclusion that the legislature did not intend to create a private cause of action through its enactment of HSCA. See 35 P.S. § 6020.102. Specifically, in delineat ing the purposes of HSCA, § 102(12)(ii) states, in pertinent part, as follows: (12) The following are the purposes of this act: (ii)" }, { "docid": "4104156", "title": "", "text": "to these motions on November 16, 1989. See documents 105 and 106 of record. A reply brief was filed by the defendants on November 28, 1989. See document 108 of record. On January 22, 1990, Allsteel joined in the motion filed by Chromatex and Continental. See document 111 of record. All the documents necessary for consideration of the instant motions are now before the court. Accordingly, the motions are now ripe for disposition. II. Discussion In reviewing a motion to dismiss a complaint for failure to state a claim under Rule 12(b)(6), all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). The complaint may be dismissed only if it appears that plaintiffs cannot establish any set of facts in support of their claims which would entitle them to relief. Truhe v. Rupell, 641 F.Supp. 57, 58 (M.D.Pa.1985) (Rambo, J.) Count X of plaintiffs third amended complaint purports to state a claim for relief under the HSCA, a statutory scheme recently enacted by the Pennsylvania General Assembly, taking effect on December 19, 1989. See document 76 of record. The following three sections of the HSCA are involved in plaintiffs’ claim: § 702(a); § 507(a); and § 1101. Section 702(a) of the HSCA provides as follows: A person who is responsible for a release or threatened release of a hazardous substance from a site as specified in section 701 is strictly liable for the following response costs and damages which result from the release or threatened release or to which the release or threatened release significantly contributes: (1) Costs of interim response which are reasonable in light of the information available to the department at the time the interim response action was taken. (2) Reasonable and necessary or appropriate costs of remedial response incurred by the United States, the Commonwealth or a political subdivision. (3) Other reasonable and necessary or appropriate costs of response incurred by any other person. (4) Damages for" }, { "docid": "4104164", "title": "", "text": "sections of the two statutory schemes, while not identical, are very similar in language and structure. {Compare 35 P.S. § 6018.601-§ 6018.617 with 35 P.S. § 6020.1101-§ 6020.1115). In determining the legislative intent of a particular statute, the court may look to other similar statutory provisions. Pennsylvania Department of Transportation v. Von Altimus, 49 Pa.Commw. 245, 410 A.2d 1303, 1305 (1980); See also 1 Pa.C.S.A. § 1921(c)(5) (court may look to “former law, if any including other statutes upon the same or similar subjects.”) In Fleck v. Timmons, 374 Pa.Super. 417, 543 A.2d 148 (1988), a panel of the Superior Court of Pennsylvania held that the legislature “provided the DER, and not private citizens of the Commonwealth, with the authority to obtain relief for violations of the provisions of the SWMA.” Id. at 424, 543 A.2d at 152. The court based this conclusion upon the fact that throughout Article VI of the SWMA (the “Enforcement and Remedies” section) the legislature had consistently stated that the DER was responsible for pursuing the specific remedies and enforcement techniques set forth therein. See id. Additionally, the Fleck court found that the legislature did consider private citizens when enacting the SWMA and accordingly, provided them with a right of intervention in actions brought initially by the DER. See id. at 425, 543 A.2d at 152. (citing 35 P.S. § 6018.615). As with the “Enforcement and Remedies” section of the SWMA, the legislature, in the corresponding provisions of the HSCA, repeatedly refers to the DER as the “person” responsible for pursuing the remedies and using the tools of enforcement provided for in that section. See e.g. 35 P.S. § 6020.1102(a) (“The department shall issue orders ... ); 35 P.S. § 6020.1103(a) (“... the department may institute a suit in equity in the name of the Commonwealth ...”); 35 P.S. § 6020.1104(a) (“... the department may assess a civil penalty ... ”). Moreover, like § 615 of the SWMA, the legislature provided for the interests of private citizens in the HSCA by affording them a right to intervene in an action brought under the act. See" }, { "docid": "13873498", "title": "", "text": "claims. Ambrogi, supra at note 1. The present memorandum addresses Count II of the Toole complaint concerning the application of the Pennsylvania Hazardous Sites Cleanup Act. II DISCUSSION A. The Pennsylvania Hazardous Sites Cleanup Act Defendant Gould has moved for judgment on all claims presented under the Hazardous Sites Cleanup Act. The Defendant maintains that any action under HSCA by the Plaintiffs is inappropriate since a private cause of action was not provided for by the Pennsylvania General Assembly. The proposition that a private cause of action does not exist under the Act, either explicitly or by implication, has been upheld by both federal and state court decisions. See Lutz v. Chromatex, et al., 730 F.Supp. 1328 (M.D.Pa.1990) ; Fallowfield Development Corp., et al. v. Strunk, Civ. No. 89-8644, slip op., 1990 WL 52745 (E.D.Pa. April 23, 1990), Pennsylvania Journal of Environmental Litigation, McGuire Publications, Volume --, Number --: (April 1990) ; Vogel Disposal Services, Inc. v. Napco, Inc., A.D. No. 89-796, slip op. (C.P. Butler County, July 16, 1990). It is not, however, an undisputed conclusion universally embraced by all authorities. See General Electric Environmental Services, Inc. v. Envirotech Corporation, 763 F.Supp. 113 (M.D.Pa.1991) (Rambo, J.), 1991 WL 69417; Mattioni, Pennsylvania Environmental Law Handbook (2nd Edition 1990) at 203-205; Prendergast, Environmental Private Rights of Action in Pennsylvania, 42-51 (Pa.Bar Instit.1991); See also, amicus curiae brief of Pennsylvania Department of Environmental Resources in Fry, et al. v. Leech Tool & Dieworks, Inc., A.D. No. 90-403 (C.P. Crawford County). After reviewing the above cited matters, it would appear that there are two substantive sources representing the divergent opinions on this subject. They can be found in the Middle District of Pennsylvania cases of Lutz II & III and Envirotech, supra. Each are comprehensive and well structured decisions delineating the arguments for and against finding a private cause of action. There is little we can add to each and find it best to fully review them separately. 1. Lutz v. Chromatex, Inc. No Private Cause of Action In Lutz v. Chromatex, Inc., 725 F.Supp. 258 (M.D.Pa.1989) (Lutz II), the court considered for" } ]

[ { "docid": "1546104", "title": "", "text": "2002. Plaintiff seeks: 1) back pay for his alleged wrongful discharge; 2) payment for the ten days worked between October 1, 1961 and plaintiffs discharge on October 10, 1961; and 3) disability retirement pursuant 10 U.S.C. §§ 1201, 1218 (2000). Plaintiff claims that the delay between his discharge in 1961, his petitions to the AFBCMR during the years 1990-1992, and his complaint in the District Court in 1993 for unlawful discharge and disability retirement is due to his futile attempts to obtain his medical and service records from the time of his discharge until February 22, 1988, when he states he obtained his records with assistance from Ohio Senator Howard Metzenbaum’s office. Plaintiff also asserts that he learned in October, 2001 that his military pay records were destroyed six years and three months after his discharge. Plaintiff contends that in spite of the running of the statute of limitations, but without further elaboration, the “United States Air Force Representatives were in a conspiracy,” fraudulently concealed the extent of plaintiffs injuries, and wrongfully discharged him. The defendant moves to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC). Defendant argues that pursuant to the applicable statute of limitations, 28 U.S.C. § 2501 (2000), this court lacks jurisdiction because plaintiff failed to file his complaint within six years of plaintiffs discharge, and within six years after the denial of the plaintiffs disability claim by the AFBCMR. Plaintiff, however, contends that the “continuing claim” and equitable tolling doctrines shield his claims from dismissal based on the statute of limitations. DISCUSSION Initially, the court recognizes that the plaintiff is proceeding pro se, and, accordingly, the plaintiff is entitled to liberal construction of his pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (requiring that allegations contained in a pro se complaint be held to “less stringent standards than formal pleadings drafted by lawyers”), reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972); see also Estelle v. Gamble, 429 U.S. 97, 106, 97" } ]

[ { "docid": "21227945", "title": "", "text": "compensation, Congress requires the VA to obtain “[t]he claimant’s service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant’s active military, naval, or air service that are held or maintained by a governmental entity.” 38 U.S.C. § 5103A(c)(l) (emphasis added). Congress has explicitly defined the VA’s duty to assist a veteran with the factual development of a benefit claim in terms of relevance. This statutory context makes clear that the appropriate definition of “ap plicable” is “relevant.” Accordingly, § 7104(a) requires the Board to base its decisions on, inter alia, relevant provisions of law. With respect to McGee’s claim, 10 U.S.C. § 1218 is relevant because it obligated the Marine Corps to ensure that McGee “(1) ha[d] made a claim for compensation, pension, or hospitalization, to be filed with the Department of Veterans Affairs, or ha[d] refused to make such a claim; or (2) ha[d] signed a statement that his right to make such a claim ha[d] been explained to him, or ha[d] refused to sign such a statement.” McGee argues, and we agree, that § 1218 is relevant because it indicates that his service personnel file may contain documentation of whether the Marine Corps satisfied § 1218’s requirements. If § 1218 had been complied with, McGee’s service personnel records would likely contain documentary evidence that may show whether McGee filed a claim for benefits prior to discharge. Accordingly, the Board could not properly assess whether “pertinent records [were] on file” without considering any records developed pursuant to § 1218. In reaching this conclusion, we do not ignore the possibility that McGee’s service personnel records might not support his claim for an earlier service-connection date. However, § 1218 is not applicable to McGee’s claim because it is dispositive; it is applicable because it is relevant. Indeed, where relevant records are sought from a Federal department or agency, “the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to" }, { "docid": "21227937", "title": "", "text": "5103A; 38 C.F.R. § 3.159. (emphasis added). McGee appealed the Board’s ruling to the Veterans Court. McGee, 20 Vet.App. at 472. On appeal to the Veterans Court, McGee argued that the Board erroneously issued its decision on a less than fully developed record because it failed to consider all applicable provisions of law as required by 38 U.S.C. § 7104. Section 7104(a) states: “Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law.” McGee argued that 10 U.S.C. § 1218 is an applicable provision of law that the Board was required to consider before it reached its decision. See McGee, 20 Vet.App. at 474. Section 1218 states: A member of an armed force may not be discharged or released from active duty because of physical disability until he— (1) has made a claim for compensation, pension, or hospitalization, to be filed with the Department of Veterans Affairs, or has refused to make such a claim; or (2) has signed a statement that his right to make such a claim has been explained to him, or has refused to sign such a statement. 10 U.S.C. § 1218(a). The Veterans Court rejected McGee’s argument and held that the Board was not required to consider 10 U.S.C. § 1218 because “[it] is not an applicable provision of law within the meaning of 38 U.S.C. § 7104(a).” McGee, 20 Vet.App. at 475. The Veterans Court described its decision as “a determination as to whether the Board complied with its statutory obligation in light of its failure to consider a particular law not found within title 38 of the U.S.Code.” Id. at 475 n. 3* It further reasoned that “ § 1218 imposes no obligation upon the Secretary of Veterans Affairs and fails to provide for any remedy in the veterans-benefits context.” Id. at 475. McGee timely appealed to this Court. II. DISCUSSION A. Standard of Review The jurisdiction of this court to review decisions of the Veterans Court is limited by statute. 38 U.S.C. §" }, { "docid": "12944081", "title": "", "text": "that the records sought do not exist or that further efforts to obtain those records would be futile. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(2). Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist, or that the custodian does not have them. Id. VA is then required to notify a claimant that it made reasonable efforts to obtain his or her Federal records but was either unable to obtain them or it was reasonably certain that any additional efforts to obtain such records would be futile. See 38 C.F.R. § 3.159(e). Whether the Secretary’s duty to assist a claimant has been triggered in obtaining relevant service personnel records when a veteran was discharged from the military because of a disability involves certain factual determinations that should be made by the Board in the first instance. The majority does not discuss the potential effect of 10 U.S.C. § 1218 on the Secretary’s statutory duty to assist. This may be explained by the majority’s view that Mr. McGee made a single argument in his appeal — that the Board erred in failing to consider 10 U.S.C. § 1218 and that, 10 U.S.C. § 1218, in conjunction with the benefit of the doubt, compels a conclusion that Mr. McGee filed a claim for VA benefits prior to his release from active duty in 1970. This is an apt description of the argument made in the appellant’s briefs. That argument was founded on Mr. McGee’s assertion that other evidence in the record did not contradict his allegation that he had filed an application for VA benefits in 1970 prior to his release from active duty. See Appellant’s Br. at 6-7. However, on the eve of oral argument, the Secretary sought permission to supplement the record on appeal with Mr. McGee’s 1978 application for educational benefits, in which the appellant indicated that he had not filed any prior claim for VA benefits. In light of this new document being added to the" }, { "docid": "12944064", "title": "", "text": "(d); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Here, Mr. McGee argues that the Board violated section 7104(a) by failing to consider and apply 10 U.S.C. § 1218, which he contends is an applicable law. See Appellant’s Br. at 7. That statute provides, in pertinent part, as follows: (a) A member of an armed force may not be discharged or released from ac tive duty because of physical disability until he— (1) has made a claim for compensation, pension, or hospitalization, to be filed with the Department of Veterans Affairs, or has refused to make such a claim; or (2) has signed a statement that his right to make such a claim has been explained to him, or has refused to sign such a statement. 10 U.S.C. § 1218(a). As explained below, we find Mr. McGee’s contention unpersuasive and conclude that 10 U.S.C. § 1218 is not an applicable provision of law within the meaning of 38-U.S.C. § 7104(a) and that, as a consequence, the Board did not err in failing to consider that provision of law. Section 1218, by its terms, is directed towards military officials and presents certain requirements that must be satisfied prior to a servicemember’s discharge from the U.S. Armed Forces — it does not place any obligation upon the Secretary of Veterans Affairs. A violation of that provision of law might result in an improper discharge from the military and subsequent entitlement to military pay, which could be properly challenged by the filing of a timely action in the U.S. Court of Federal Claims. See Quailes v. United States, 25 Cl.Ct. 659, 662 (1992) (noting a plaintiffs argument that his separation from service was improper because, among other things, the separation violated 10 U.S.C. § 1218); see also Barney v. United States, 57 Fed.Cl. 76, 79 (2003) (noting a plaintiffs argument that he was entitled to “disability retirement” pursuant to 10 U.S.C. § 1218 because he was wrongfully discharged from service). The Secretary is correct that this Court is not the proper forum for such a challenge. See Denton v. Schlesinger, 605 F.2d" }, { "docid": "12944065", "title": "", "text": "that provision of law. Section 1218, by its terms, is directed towards military officials and presents certain requirements that must be satisfied prior to a servicemember’s discharge from the U.S. Armed Forces — it does not place any obligation upon the Secretary of Veterans Affairs. A violation of that provision of law might result in an improper discharge from the military and subsequent entitlement to military pay, which could be properly challenged by the filing of a timely action in the U.S. Court of Federal Claims. See Quailes v. United States, 25 Cl.Ct. 659, 662 (1992) (noting a plaintiffs argument that his separation from service was improper because, among other things, the separation violated 10 U.S.C. § 1218); see also Barney v. United States, 57 Fed.Cl. 76, 79 (2003) (noting a plaintiffs argument that he was entitled to “disability retirement” pursuant to 10 U.S.C. § 1218 because he was wrongfully discharged from service). The Secretary is correct that this Court is not the proper forum for such a challenge. See Denton v. Schlesinger, 605 F.2d 484, 486-88 (9th Cir.1979) (holding that the U.S. Court of Claims was the proper forum for a suit by junior officers in the Navy and Marine Corps who sought money damages and injunctive relief for their allegedly wrongful discharges); see also Secretary’s Br. at 13-14. In our view, 10 U.S.C. § 1218 imposes no obligation upon the Secretary of Veterans Affairs and fails to provide for any remedy in the veterans-benefits context. Because we hold that 10 U.S.C. § 1218 is inapplicable in this context, it follows that Mr. McGee’s argument that that statute coupled with the benefit of the doubt doctrine “mandates that the VA find ... that [he] signed an application for benefits” is without merit. Appellant’s Br. at 6. Moreover, even were we to assume for argument’s sake that 10 U.S.C. § 1218 does apply here, Mr. McGee’s argument would remain unavailing. That is so because the statute itself does not require the filing of a claim for VA benefits. Instead, the statute merely provides that a servicemember “may not be discharged" }, { "docid": "22293262", "title": "", "text": "Under procedures prescribed by him, the Secretary of the Treasury may in the same manner correct any military record of the Coast Guard. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. * sfc & * Hs “(c) The department concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be. * * * * * “(d) Applicable current appropriations are available to continue the pay, allowances, compensation, emoluments, and other pecuniary benefits of any person who was paid under subsection (c), and who, because of the correction of his military record, is entitled to those benefits, but for not longer than one year after the date when his record is corrected under this section if he is not reenlisted in, or appointed or reappointed to, the grade to which those payments relate. Without regard to qualifications or reenlistment, or appointment or reappointment, the Secretary concerned may reenlist a person in, or appoint or reappoint him to, the grade to which payments under this section relate.” [Emphasis added.] 10 U.S.C. § 1553 provides : “(a) The Secretary concerned shall, after consulting the Administrator of Veterans’ Affairs, establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative. A motion or request for review must be made within 15 years after the date of the discharge or dismissal. “ (b) A" }, { "docid": "1095799", "title": "", "text": "of enlistment extension bonus agreement, courts should refer to statutes and regulations rather than ordinary contract principles); Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 1235, 6 L.Ed.2d 365 (1961) (“Common law rules governing private contracts have no place in the area of military pay”), there are cases in which courts have examined enlistment agreements under contract principles. See Peavy v. Warner, 493 F.2d 748, 750 (5th Cir.1974) (claim that enlistment extension contract was invalid or was breached decided under traditional notions of contract law); Johnson v. Chafee, 469 F.2d 1216, 1220 (9th Cir.1972) (impliedly same); Shelton v. Brunson, 465 F.2d 144, 147 (5th Cir.1972) (same); Helton v. United States, 532 F.Supp. 813, 824 (S.D.Ga.1982) (same). In any event, the remedy for breach in this case cannot be the relief that the veteran seeks, a direction by the Court that the unauthorized enlistment contract be honored through specific performance, because the veteran is not eligible to receive such benefits under statutory law. As Richmond succinctly noted: “[I]t would be most anomalous for a judicial order to require a Government official ... to make an extrastatutory payment of federal funds. It is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress.” Richmond, 496 U.S. at 430, 110 S.Ct. at 2474. B. Discharge Characterization The veteran also contends that his discharge should be classified as a “hardship” discharge, a characterization which he believes would entitle him to educational assistance under 38 U.S.C. § 3011(a)(l)(A)(ii)(I). However, any disagreement the veteran may have regarding the assigned discharge classification must be raised with the Army Board for the Correction of Military Records, not VA. See 10 U.S.C. § 1552(a)(1) (Secretary of a military department may correct any of his department’s military records “to correct an error or remove an injustice”); Lauginiger v. Brown, 4 Vet.App. 214, 216 (1993) (veteran must look to the Air Force, not VA, in dispute over whether service records of radiation exposure are complete). C. Equitable Relief The veteran further requests the" }, { "docid": "21227938", "title": "", "text": "(2) has signed a statement that his right to make such a claim has been explained to him, or has refused to sign such a statement. 10 U.S.C. § 1218(a). The Veterans Court rejected McGee’s argument and held that the Board was not required to consider 10 U.S.C. § 1218 because “[it] is not an applicable provision of law within the meaning of 38 U.S.C. § 7104(a).” McGee, 20 Vet.App. at 475. The Veterans Court described its decision as “a determination as to whether the Board complied with its statutory obligation in light of its failure to consider a particular law not found within title 38 of the U.S.Code.” Id. at 475 n. 3* It further reasoned that “ § 1218 imposes no obligation upon the Secretary of Veterans Affairs and fails to provide for any remedy in the veterans-benefits context.” Id. at 475. McGee timely appealed to this Court. II. DISCUSSION A. Standard of Review The jurisdiction of this court to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292; Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). Under § 7292(c), we have “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation, or any interpretation thereof’ by the Veterans Court. See also Forshey, 284 F.3d at 1338. Constitutional and statutory interpretations by the Veterans Court are reviewed de novo. Santana-Venegas v. Principi, 314 F.3d 1293, 1296 (Fed.Cir.2002). This court is limited by its jurisdictional statute and, absent a constitutional issue, may not review challenges to factual determinations or challenges to the application of a law or regulation to facts. 38 U.S.C. § 7292(d)(2). Because McGee challenges the Veterans Court’s interpretation of a statute, we have jurisdiction pursuant to 38 U.S.C. § 7292(c). B. Analysis McGee submits that the Veterans Court upheld the Board’s decision under an erroneous interpretation of “applicable” as used in 38 U.S.C. § 7104(a). He argues that the plain meaning of “applicable” is “relevant.” Because 10 U.S.C. § 1218 indicates that McGee’s service personnel file may contain evidence that tends to establish" }, { "docid": "20653135", "title": "", "text": "case must not work a basic unfairness to the party bound by the first determination.” Martin v. DOJ, 488 F.3d 446, 454 (D.C.Cir.2007) (quoting Yamaha Corp. of Amer. v. United States, 961 F.2d 245, 254 (D.C.Cir.1992)). The Secretary argues that the CFC resolved the issues before this Court by construing Fulbright’s 2008 ABCMR application for disability retirement benefits as a request for reconsideration of the ABCMR’s 1993 decision, rather than a new action, and thus determining that his claim was barred by the Tucker Act’s six-year statute of limitations. Def.’s Mem. in Supp. of Mot. to Dismiss at 7. The CFC’s determinations, however, do not have pre-clusive effect in this proceeding because whether the Tucker Act’s statute of limitations has expired is a different question of law than whether the APA’s statute of limitations has expired. The Tucker Act does not itself create substantive rights but instead provides a cause of action for suits for money damages against the United States based upon, among other things, an act of Congress. 28 U.S.C. § 1491(a)(1). The CFC reviewed two statutes that might have entitled Fulbright to relief under the Tucker Act if suit was brought within its six-year statute of limitations. First, the Military Pay Act (“MPA”), 37 U.S.C. § 204 (2006), entitles active-duty members of the military to challenge a wrongful termination. Claims under the MPA “accrue immediately upon discharge, because appealing to a correction board is not required for judicial review.” Fulbright I, 97 Fed.Cl. at 228 (citing Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003) (en banc)). Thus, any claim Fulbright might have had under the MPA would have accrued six years after he lost active-duty status in 1989. But, because Fulbright challenged the ABCMR’s review of the decision to deny him medical retirement, the CFC determined that his claim was properly brought under another statute, 10 U.S.C. § 1201, which entitles a servicemember who is unfit for service to disability pay. Id. (citing Chambers v. United States, 417 F.3d 1218, 1223 (Fed.Cir.2005)). Under this statute, a decision by “ ‘[t]he first statutorily authorized board that hears" }, { "docid": "18675258", "title": "", "text": "A further consideration is a policy of judicial reluctance to interfere in internal military affairs. Rank v. Gleszer, 288 F.Supp. 174, 175 (D.Colo.1968). In the present case, the Petitioner is clearly alleging that the military has violated its own regulations. This Court is thus squarely confronted with the issue of whether the Petitioner has exhausted available intra-service remedies. While the military regulations which deal with the discharge of homosexuals do not provide a mechanism for appeal of the denial of a homosexual discharge, this does not mean that normal channels of review are unavailable. For example, a member of the military may file a complaint under Article 138 of the Uniform Code of Military Justice. See 10 U.S.C. § 938 (1976); Colson v. Bradley, 477 F.2d 639, 642 (8th Cir. 1973). The statute essentially states that: Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with proceedings had thereon. 10 U.S.C. § 938 (1976). Where most of the material allegations in a habeas petition concern the actions of one’s military commanding officer, Article 138 is the most appropriate remedy to exhaust. Casey v. Schlesinger, 382 F.Supp. 1218, 1220 (N.D.Okl.1974). Other courts, including the Fifth Circuit, have also endorsed the principle that a habeas petitioner should exhaust his remedies available under the Article 138 before coming to the federal courthouse door. United States ex rel. Berry v. Commanding General, 411 F.2d 822, 825 (5th Cir. 1969); see generally Metz v. United States, 304 F.Supp. 207 (W.D.Pa.1969). Finally, the law is well-settled that an administrative remedy once invoked must be followed to its conclusion. Hayes v. Secretary of Defense," }, { "docid": "21945500", "title": "", "text": "reasons, we affirm the decision of the Court of Federal Claims. AFFIRMED COSTS No costs. . Section 1552 of title 10 gives the military secretaries power to correct military records using civilian boards. It provides that \"[t]he Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(2) (2000). . Retirement pay claims are brought under other money-mandating statutes. See, e.g., 10 U.S.C. §§ 6323, 6333, 1370; see also Sawyer v. United States, 930 F.2d 1577 (Fed.Cir.1991) (holding that the disability retirement pay statute, 10 U.S.C. § 1201, is money-mandating). . The corrections board statute, 10 U.S.C. § 1552, is not a money-mandating statute that provides the basis for a Tucker Act suit. Martinez, 333 F.3d at 1315. . See generally, e.g., Chappell, 462 U.S. at 303, 103 S.Ct. 2362 (recognizing that enlisted men challenging denial of promotions based on unconstitutional discrimination can seek relief from the board under the correction board statute, and that \"Board decisions are subject to judicial review and can be set aside if they are arbitraiy, capricious or not based on substantial evidence.”); Berkley v. United States, 287 F.3d 1076, 1090-91 (Fed.Cir.2002) (addressing claim that reduction-in-force violated officers’ Fifth Amendment right to equal protection by taking into account racial and gender characteristics in selecting them for involuntary separation). . See, e.g., Richey v. United States, 322 F.3d 1317, 1325-26 (Fed.Cir.2003) (where discharge resulted from allegedly improper non-promotion decisions, court reviewed the military’s promotion procedures for compliance with 10 U.S.C. § 628); Porter, 163 F.3d at 1311-12 (same); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 814, 817 (1979) (where discharge resulted from improperly denied promotions, court concluded that the military had \"violated both the spirit and letter of the statute [10 U.S.C. § 3442(c), 8442(c) (1976) (repealed 1980)] and regulations.\"); Doyle v. United States, 220 Ct.Cl. 285, 599 F.2d 984, 996 (1979) (holding that promotion decision violated statutory requirement governing composition of selection board); see also Roth v. United States, 378 F.3d" }, { "docid": "8433625", "title": "", "text": "of Appeals for Veterans Claims by filing an appeal directly with the Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over such matters. 38 U.S.C. § 7292(a), (c) (2000). Because the controlling statutes specify the fora where Plaintiff may seek redress for the denial of his veterans’ disability benefits and this Court is not among them, this Court lacks jurisdiction over Plaintiffs claims for veterans’ disability benefits. Military Disability Retirement Status and Pay Plaintiff also seeks disability retirement pay and special disability compensation. Compl. UU 35-38. The complaint states: 7. SPECIAL COMPENSATION Under 10 U.S.C. Section 1413(a) Petitioner would qualify for twenty-five (25) years of service if Petitioner were not too sick to stay in the military, as well as, qualify for a disability that is compensable under the laws of the Secretary of Veterans Affairs and while engaged in hazardous service when Petitioner was injured from his exposure to Agent Orange and Agent Blue. As such, Petitioner should be able to request Special Compensation under 10 U.S.C. S. Section 1413(a). 8. MILITARY PAY This case is being requested under (1) A statutory and regulatory challenge to a service member’s separation and (2) A claim for military retirement benefits. Petitioner’s authority to provide relief in this matter is governed by the terms of the backPay Act, 5 U.S.C. § 5596 (1976). The Act provides, that on correction of an erroneous personnel action an employee of an executive agency of the federal government is entitled to receive: “an amount equal to all or any part of the pay, allowances or differentials, that the employee normally would have earned”, Polos v. United States, 231 Ct.Cl. 929. 9. ENLISTED PERSONNEL CLAIM The challenged adverse personnel action was grounded in either a statutory or regulatory violation; therefore, this case satisfies Brigante v. United States, 35 Fed.Cl. 526, 529 (1996). 10. RETIREMENT BENEFITS AND OR SEVERANCE PAY Petitioner was injured by Agent Orange exposure while on active duty. Petitioner never received a medical release from his doctor prior to discharge. Since Petitioner was injured while on active duty the Court of Federal" }, { "docid": "12944066", "title": "", "text": "484, 486-88 (9th Cir.1979) (holding that the U.S. Court of Claims was the proper forum for a suit by junior officers in the Navy and Marine Corps who sought money damages and injunctive relief for their allegedly wrongful discharges); see also Secretary’s Br. at 13-14. In our view, 10 U.S.C. § 1218 imposes no obligation upon the Secretary of Veterans Affairs and fails to provide for any remedy in the veterans-benefits context. Because we hold that 10 U.S.C. § 1218 is inapplicable in this context, it follows that Mr. McGee’s argument that that statute coupled with the benefit of the doubt doctrine “mandates that the VA find ... that [he] signed an application for benefits” is without merit. Appellant’s Br. at 6. Moreover, even were we to assume for argument’s sake that 10 U.S.C. § 1218 does apply here, Mr. McGee’s argument would remain unavailing. That is so because the statute itself does not require the filing of a claim for VA benefits. Instead, the statute merely provides that a servicemember “may not be discharged or released from active duty because of physical disability” unless one of the following four conditions has occurred: (1) The servicemember has “made a claim” for VA benefits; (2) the servicemember has “refused to make such a claim”; (3) the servicemember “has signed a statement that his right to make such a claim has been explained to him”; or (4) the servicemem-ber has “refus[ed] to sign such a statement.” 10 U.S.C. § 1218(a)(1), (2). Thus, assuming that Mr. McGee’s discharge conformed to the requirements of the statute, the scenario that Mr. McGee argues must be presumed to have occurred is but one of four possible conditions, only one of which must necessarily have occurred. In other words, the terms of the statute could have been satisfied without Mr. McGee having filed a claim for benefits with VA. Because Mr. McGee’s lone argument— that the terms of 10 U.S.C. § 1218 compel a conclusion that he filed a claim for VA benefits prior to Ms discharge from active duty in 1970 — is without merit, we" }, { "docid": "12944078", "title": "", "text": "435 (2000); Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (citing Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (stating that “words [in a statute], unless otherwise defined, will be interpreted as taking their ordinary, contemporary, common meaning.”)). The word “applicable” is defined as “that can be applied; appropriate.” Webster’s New WORLD Dictionary of American English 67 (3rd College ed.1988). A synonym for “applicable” is “relevant.” Id. “Relevant,” is defined as “bearing upon or relating to the matter in hand; pertinent; to the point.” Id. at 1133. A statute can be relevant and therefore applicable even if it does not impose a duty on the Secretary or provide a remedy for its violation. Here, 10 U.S.C. § 1218, on its face, imposes a duty on the Armed Services that is relevant to veterans benefits adjudication. Prior to a servicemember’s discharge or release from active duty because of a physical disability, the Armed Services must ensure that the servicemember has either made a claim for VA benefits or declined to make such a claim. As in the case before the Court, a key factual question that must be resolved, in many earlier-effective-date cases, involves a determination of the date the claimant filed an application for VA benefits. The resolution of this issue turns upon the available documentary evidence. In a case where a claimant who has been discharged from the military because of a physical disability alleges that he filed an application for VA benefits prior to his release or discharge from active duty, and there is no evidence of such an application, 10 U.S.C. § 1218 is relevant because it indicates that pertinent records may exist in the veteran’s service personnel file to support his claim that an application for VA benefits was filed. Thus, the statute is an “applicable law” within the meaning of section 7104(a) because it points to a source of evidence that may support a veteran’s claim for VA benefits. Additionally, although section 1218 does not impose a duty on the Secretary, it" }, { "docid": "12944075", "title": "", "text": "nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has ... taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an ‘approximate balance of positive and negative evidence.’ ” Id. at 54. Because the benefit of the doubt is a standard of proof, it applies when all of the evidence is assembled, and the Board makes its determination whether the evidence supports the claim or is in relative equipoise (the veteran prevailing in either event), or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Id. at 55; see also 38 C.F.R. § 3.102 (stating that “[w]hen after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service connection, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant”). Thus, contrary to Mr. McGee’s argument, the benefit of the doubt does not relieve him of the burden of having to produce actual evidence to support his contention that he applied for service-connected benefits prior to April 1999. Further, the benefit of the doubt, in conjunction with section 1218, does not create evidence otherwise missing from the record to be weighed in Mr. McGee’s favor when the Board determines whether the evidence is in equipoise. Accordingly, without actual documentary evidence to indicate that Mr. McGee applied for VA benefits prior to his release from active duty, the Board may not assume that he exercised this option under section 1218. While I agree with the majority regarding Mr. McGee’s benefit of the doubt argument, I respectfully differ with the majority’s view that the Board does not have a duty to consider 10 U.S.C. § 1218. The majority concludes that section 1218 is not an “applicable law” within the meaning of 38 U.S.C. § 7104(a) because it imposes “no obligation upon the Secretary and fails to provide any remedy in the veterans-benefits context.” Section 7104(a) provides, in pertinent part," }, { "docid": "12944061", "title": "", "text": "claim for an increased disability rating was filed within one year of the mailing to Mr. McGee of a VA claim form in response to his April 1999 letter. R. at 216. Mr. McGee appealed that decision on the basis that he is entitled to an effective date earlier than April 15, 1999. That issue reached the Board and was the subject of the February 2004 decision now on appeal. In that decision, the Board denied Mr. McGee an effective date prior to April 15, 1999, for service connection for sarcoidosis. In so doing, the Board concluded that “there is no evidence of VA receipt of a written claim, formal or informal, for service connection for sarcoidosis ... until April 15,1999.” R. at 4. On appeal, Mr. McGee raises a single argument — that “[t]he Board erred in failing to consider or apply 10 U.S.C. § 1218.” Appellant’s Brief (Br.) at 1. In particular, he contends that that statute operates to create a presumption that he filed a claim for VA benefits for his lung condition “when he was released from active duty in 1970.” Id. at 3. In support of that argument, he asserts that “the benefit of the doubt rule mandates that the VA find ... that [he] signed an application for benefits.” Id. at 6. He asks the Court to vacate the decision on appeal and to grant him an earlier effective date or to remand the case to the Board for readjudication under 10 U.S.C. § 1218. Id. at 7. In response, the Secretary asserts that the Court should not consider Mr. McGee’s argument because he never raised it before VA. See Secretary’s Br. at 6-10. If the Court should address Mr. McGee’s argument, the Secretary contends that the Board had no obligation to consider 10 U.S.C. § 1218, because that statute pertains to the propriety of military discharges, and the proper forum for considering an alleged violation of that statute is the U.S. Court of Federal Claims. Thus, he argues that VA “has no ... responsibility to apply the laws regarding military discharges when determining" }, { "docid": "12944079", "title": "", "text": "claim for VA benefits or declined to make such a claim. As in the case before the Court, a key factual question that must be resolved, in many earlier-effective-date cases, involves a determination of the date the claimant filed an application for VA benefits. The resolution of this issue turns upon the available documentary evidence. In a case where a claimant who has been discharged from the military because of a physical disability alleges that he filed an application for VA benefits prior to his release or discharge from active duty, and there is no evidence of such an application, 10 U.S.C. § 1218 is relevant because it indicates that pertinent records may exist in the veteran’s service personnel file to support his claim that an application for VA benefits was filed. Thus, the statute is an “applicable law” within the meaning of section 7104(a) because it points to a source of evidence that may support a veteran’s claim for VA benefits. Additionally, although section 1218 does not impose a duty on the Secretary, it has a potential effect on his duty to assist a claimant in developing the facts pertinent to his claim. See 38 U.S.C. § 5103A. As this Court has recognized, there is a continuing obligation upon VA to assist veterans in developing the facts pertinent to their claims throughout the entire administrative adjudication. See Dingess v. Nicholson, 19 Vet.App. 473 (2006); see also Murincsak v. Derwinski, 2 Vet.App. 363 (1992). Under 38 U.S.C. § 5103A(b), VA’s duty to assist includes making “reasonable efforts to obtain relevant records,” so long as the claimant “adequately identifies” those records to the Secretary and authorizes the Secretary to obtain them. 38 U.S.C. § 5103A(b)(l); Loving v. Nicholson, 19 Vet.App. 96, 101-02 (2005). Relevant records could include, but are not limited to, military records, including service medical and personnel records; medical and other records from VA medical facilities; and records from other Federal agencies. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(e)(2) (2005). VA may cease its efforts to obtain records from a Federal department or agency if it concludes" }, { "docid": "12944062", "title": "", "text": "condition “when he was released from active duty in 1970.” Id. at 3. In support of that argument, he asserts that “the benefit of the doubt rule mandates that the VA find ... that [he] signed an application for benefits.” Id. at 6. He asks the Court to vacate the decision on appeal and to grant him an earlier effective date or to remand the case to the Board for readjudication under 10 U.S.C. § 1218. Id. at 7. In response, the Secretary asserts that the Court should not consider Mr. McGee’s argument because he never raised it before VA. See Secretary’s Br. at 6-10. If the Court should address Mr. McGee’s argument, the Secretary contends that the Board had no obligation to consider 10 U.S.C. § 1218, because that statute pertains to the propriety of military discharges, and the proper forum for considering an alleged violation of that statute is the U.S. Court of Federal Claims. Thus, he argues that VA “has no ... responsibility to apply the laws regarding military discharges when determining the effective date of a claim.” Id. at 13. II. ANALYSIS A Board determination of the proper effective date is a finding of fact. See Hanson v. Brown, 9 Vet.App. 29, 32 (1996). The Court reviews Board factfinding under the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). Under 38 U.S.C. § 5110, “[u]nless specifically provided otherwise ..., the effective date of an award based on an original claim ... or a claim for increase! ] of compensation ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” See 38 C.F.R. § 3.400 (2005). In addition, in rendering its decision, pursuant to 38 U.S.C. § 7104, the Board is obligated to consider “applicable provisions of law and regulation” and include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record. 38 U.S.C. § 7104(a)," }, { "docid": "21227946", "title": "", "text": "or ha[d] refused to sign such a statement.” McGee argues, and we agree, that § 1218 is relevant because it indicates that his service personnel file may contain documentation of whether the Marine Corps satisfied § 1218’s requirements. If § 1218 had been complied with, McGee’s service personnel records would likely contain documentary evidence that may show whether McGee filed a claim for benefits prior to discharge. Accordingly, the Board could not properly assess whether “pertinent records [were] on file” without considering any records developed pursuant to § 1218. In reaching this conclusion, we do not ignore the possibility that McGee’s service personnel records might not support his claim for an earlier service-connection date. However, § 1218 is not applicable to McGee’s claim because it is dispositive; it is applicable because it is relevant. Indeed, where relevant records are sought from a Federal department or agency, “the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.” 38 U.S.C. § 5103A(b)(3). The statute simply does not excuse the VA’s obligation to fully develop the facts of McGee’s claim based on speculation as to the dispositive nature of relevant records. III. CONCLUSION Because the Veterans Court erroneously interpreted “applicable” as used in 38 U.S.C. § 7104(a), the decision of the Veterans Court is reversed, and McGee’s claim for a service connection date earlier than April 15, 1999 is remanded for consideration of 10 U.S.C. § 1218. REVERSED and REMANDED IV. COSTS No costs. . Placement on the temporary disability retired list allows a veteran to collect retirement benefits, subject to medical review of the disability every eighteen months. See 10 U.S.C. §§ 1202, 1210. . Section 1218 remains essentially unchanged since McGee’s discharge in 1970. . Section 7104(d)(1) requires that the decision of the Board include \"a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record.\"" }, { "docid": "16193151", "title": "", "text": "case, such decision can be found to create a cause of action that is separate from the original discharge decision. At least that is the conclusion reached by every other federal court of appeals that has addressed the question; these circuits uniformly allow veterans six years to request judicial review of a Correction Board decision. Other circuits get involved in these cases because a veteran who wishes to have judicial review of an adverse decision of a Correction Board regarding his discharge from the military, but eschews any interest in a money claim against the Government as a consequence of the discharge, has an alternative to a Tucker Act-based suit. Such a plaintiff can seek review of the decision of the Correction Board in a federal district court under the Administrative Procedure Act (APA), 5 U.S.C. § 702 et seq. The suit will be decided under the law of, and reviewed on appeal by, the appropriate regional circuit court of appeals. The difference stems from whether the veteran requests a purely administrative remedy — for example, purging of the record, reinstatement, promotion — or whether the veteran as part of the relief sought would be entitled to a monetary award for denied pay. In the purely administrative remedy context, the action is based on § 702 of the APA, which waives the United States’s sovereign immunity for claims in certain cases involving a decision of an administrative agency. The military services are considered administrative agencies for this purpose. The Second Circuit addressed the issue in Blassingame v. Secretary of the Navy, 811 F.2d 65, 68 (2d Cir.1987). A Vietnam veteran sought upgrade of an undesirable discharge to an honorable discharge. The Navy’s Correction Board (as well as its Discharge Review Board, see 10 U.S.C. § 1553(a)) had denied relief. Thirteen years after his discharge, but within one year of the Correction Board decision, suit was brought in federal district court. The district court held, inter alia, that the statute of limitations barred the suit to review the decision of the Correction Board. The Court of Appeals reversed, holding: (1) since" } ]

[ { "docid": "2607823", "title": "", "text": "States v. Cioffi, supra at 497 n. 6, 498. Ortega-Alvarez’ prosecution for conspiracy was therefore in no way barred by his prior conviction for selling narcotics not in their original stamped package. Ortega-Alvarez also argues that since he was originally indicted in Florida for conspiracy and agreed to plead guilty to a lessor charge with the understanding that the conspiracy charge would be dropped, the government is now prohibited by the due process clause from prosecuting him for that same conspiracy. However, there is nothing in the record which establishes that such an understanding was in fact reached. The rule is that when an indictment is dismissed before trial upon the government’s motion under Rule 48(a) of the Federal Rules of Criminal Procedure, the dismissal is without prejudice to the government’s right to rein-dict for the same offense, unless the contrary is expressly stated. DeMarrias v. United States, 487 F.2d 19, 21 (8th Cir. 1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1570, 39 L.Ed.2d 877 (1974); United States v. Davis, 487 F.2d 112, 118 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974); United States v. Chase, 372 F.2d 453, 463-464 (4th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967). Appellant Infiesta claims that his conviction should be reversed on the ground that he was denied the effective assistance of counsel at trial. He argues that his trial counsel failed to consult with him sufficiently before the trial and failed to cross-examine government witnesses properly at the trial. Under our decisions, a conviction may be reversed for ineffective assistance of counsel only when the representation is so inadequate “as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.” United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950); see United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1312 (2d Cir. 1974); United States v. Currier, 405 F.2d 1039, 1043 (2d Cir.), cert. denied, 395 U.S." } ]

[ { "docid": "7491561", "title": "", "text": "under Rule 48(b), this court is not limited to delay from indictment to the present. The Congressional mandate for speedy prosecution under the Selective Service Act of 1967 justifies examination of the delay between the February 1971 referral to the government and the filing of an indictment. B. Unnecessary Delay The 48(b) right is not only broader than the Sixth Amendment right in that it may attach before a person is accused but also in that once brought to bear Rule 48(b) provides significantly stricter standards by which this court must judge the govern ment’s efforts to bring defendant Salzmann to trial. That 48(b) requires dismissal when there has been a violation of a defendant’s right to a speedy trial has long been clear. Pollard v. United States, 352 U.S. 354, 361 n. 7, 77 S.Ct. 481, 486, 1 L.Ed.2d 393 (1957); United States v. Ward, 240 F.Supp. 659, 660 (W.D.Wis.1965); United States v. Palermo, 27 F.R.D. 393, 394 (S.D.N.Y.1961). Yet Rule 48(b) does more than implement constitutional guarantees: it is designed also to protect other compelling public interests—not necessarily of constitutional proportions—in the prosecution of those accused of crime without the procrastination of which the processes of law are sometimes guilty. United States v. Mark II Electronics, 283 F.Supp. 280, 283 (E.D.La.1968) and 305 F.Supp. 1280, 1287 (1969). See also United States v. Clay, 481 F.2d 133, 135 (7th Cir.), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 247 (1973); United States v. DeLeo, 422 F.2d 487, 495 (1st Cir.), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970); United States v. Cartano, 420 F.2d 362, 363 (1st Cir.), cert. denied, 397 U.S. 1054, 90 S.Ct. 1398, 25 L.Ed.2d 671 (1970); Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312, 314-15 (1967) (Rule 48(b) “places a stricter requirement of speed on the prosecution, and permits dismissal of an indictment even though there has been no constitutional violation”); Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, 398, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962). Finally, when the" }, { "docid": "4921037", "title": "", "text": "compels the Court to grant the motion to dismiss. The only remaining issue is whether the dismissal should be with or without prejudice. Because the remedy is drastic and because Rule 48(b) can be used as a device for mere calendar control, it is usually assumed that a 48(b) dismissal is without prejudice to the government’s right to rein-dict the defendant on the same charge. U. S. v. Correia, 531 F.2d 1095 (1st Cir. 1976); U. S. v. Stoker, 522 F.2d 576 (10th Cir. 1975); U. S. v. Clay, 481 F.2d 133 (7th Cir. 1973), cert, denied 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 133. It seems only proper, however, that when the order of dismissal is based on a finding of unnecessary, unjustified, and prejudicial delay, as here, the considered judgment of the court is not to be circumvented by reindictment of the defendant. See Clay, supra (negative implication); Salzmann, supra, 417 F.Supp. 1139. As the Circuit Court for the District of Columbia said in Mann, supra, 113 U.S.App. D.C. at 29, 304 F.2d 395 at 397, “a dismissal based on a finding that the constitutional right to a speedy trial has been denied bars all further prosecution of the accused for the same offense.” In addition, however, it is now widely held that federal courts possess the power under Rule 48(b) to dismiss with prejudice even absent a finding of constitutional violation. See U. S. v. Simmons, 536 F.2d 827 (9th Cir. 1976), cert, denied 429 U.S. 854,97 S.Ct. 148, 50 L.Ed.2d 130; U. S. v. Stoker, 522 F.2d 576 (10th Cir. 1975); U. S. v. Furey, 514 F.2d 1098 (2d Cir. 1975); U. S. v. Clay, 481 F.2d 133 (7th Cir. 1973), cert, denied 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 133. In the Simmons case, however, the Ninth Circuit announced a restriction on the proper exercise of that power, saying: “[W]e hold that even though it is within the court’s inherent power under Rule 48(b) to dismiss a case with prejudice for want of prosecution, not arising from a Sixth Amendment violation, such power" }, { "docid": "8945173", "title": "", "text": "later seized pursuant to the search warrant. . 18 U.S.C. § 3282 (1970), which states: Except as otherwise provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed. . Rule 48(b) states in part: If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint. . The sixth amendment to the Constitution states in part: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial .... . The fifth amendment to the Constitution states in part: No person shall be . deprived of life, liberty, or property, without due process of law .... . The parties argue in their briefs about whether Marion, as interpreted by this Court, requires the defense to show both actual prejudice and intentional tactical delay by the prosecutor before a due process violation may be found. The dispute is settled by United States v. Lovasco, -U.S. -, 97 S.Ct. 2044, 52 L.Ed.2d 752, 1977, which holds that prejudice alone “makes a due process claim concrete and ripe for adjudication”. Id. at-, 97 S.Ct. at 2048. Whether the claim is valid depends on the due process balancing between the extent of the actual prejudice and the governmental interests at stake. The opinion does not indicate that governmental interests not amounting to an intentional tactical delay will automatically justify prejudice to a defendant. On the contrary, the Court engages in a sensitive balancing of the government’s need for an investigative delay in Lovasco against the prejudice asserted by the defendant. The analysis in Lovasco is consistent with most Fifth Circuit cases. See United States v. McGough, 5 Cir. 1975, 510 F.2d 598; United States v. Beckham, 5 Cir. 1975, 505 F.2d 1316; United" }, { "docid": "18455441", "title": "", "text": "items of alleged misconduct enumerated in defendants’ motion are either of limited relevancy to the present cases as discussed above, or are clearly without merit from the record and require no further comment. It is the view of the court that the government has not engaged in misconduct related to these cases which would irreparably prejudice defendants’ rights to a fair trial, and dismissal is not warranted either under the Fifth Amendment or the court’s supervisory powers. Motion to Dismiss for Denial of Speedy Trial The substance of defendants’ motions relating to speedy prosecution is that the failure to try them together with Russell Means and Dennis Banks in January of 1974 has violated their rights under the Fifth and Sixth Amendments to the United States Constitution and FRCrP 48, and that these charges should accordingly be dismissed. Sixth Amendment In Barker v. Wingo, 407 U. S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the Supreme Court delineated the criteria by which claims of deprivation of a speedy trial are to be judged. This case establishes a balancing test, in which the conduct of both the prosecution and defendant are weighed, and identifies four factors which are of prime importance: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. None of these factors are dispositive in and of themselves but rather are related factors and must be considered together with such other circumstances as may be relevant to the particular case. See, e. g., United States v. Baumgarten,t 517 F.2d 1020 (8th Cir. 1975) ; United States v. Getter, 481 F.2d 275 (9th Cir. 1973); United States v. Lasker, 481 F.2d 229, 237 (2nd Cir. 1973) ; United States v. Phillips, 482 F.2d 191 (8th Cir. 1973); United States v. Toy, 157 U.S.App.D.C. 152, 482 F.2d 741 (1973). It has been observed, however, that when dealing with the Sixth Amendment, delay would almost always be considered harmless error unless there has been a showing of prejudice. United States v. Clay, 481 F.2d 133 (7th Cir. 1973). Turning to an" }, { "docid": "13872903", "title": "", "text": "not been violated. The Court so states when it expresses that the dismissal is granted, “so that defendant’s constitutional rights may not be violated.” The defendant bases his contention on Mann v. United States, 113 U.S. App.D.C. 27, 304 F.2d 394 (1962). The Court in Mann after considering that the prior dismissal was without prejudice, states: “The dismissal here was not compelled by the Speedy Trial Clause. Appellant was promptly indicted, within five weeks after the crime, and only seven months more had passed when the Court dismissed the indictment. At that, most of the delay was of his own making. Certainly, in these circumstances, the one week continuance obtained by the government did not work a deprivation of constitutional rights. Nor would a reasonable further delay. The trial judge acted, not under constitutional compulsion, but, on the government’s suggestion, out of concern for the accused who remained incarcerated, presumably because he could not meet his bond. And the Court clearly expressed its intent to award the dismissal without prejudice to further prosecution should the government later uncover the missing evidence.” Substantially similar facts are now present before us. The Court’s dismissal was without prejudice and did not state that the defendant’s constitutional rights were violated. Under the rule of the Mann case, we cannot dismiss the present indictment on the grounds that the prior dismissal bars further indictments. See also: Cohen v. United States, 366 F.2d 363 (9 Cir., 1966); Hanrahan v. United States, 121 U.S. App.D.C. 134, 348 F.2d 363 (1965); United States v. Chase, 372 F.2d 453 (4 Cir., 1967). That the first indictment was dismissed for reasons other than constitutional ones is an action clearly authorized by Rule 48(b) of Federal Rules of Criminal Procedure. As stated in Mann with respect to appellant’s contention that a dismissal under Rule 48(b) for “want of prosecution” means that a defendant has been denied his right to speedy trial: “That Rule is much broader than he imagines. Undeniably, it implements the constitutional guarantee of a speedy trial. . . . But it goes further. As the Committee Note indicates," }, { "docid": "4921036", "title": "", "text": "of a fresher record by which to explain, justify, or otherwise account for his actions at the time of his alleged escape. Furthermore, in the ensuing year, he would have had access to the regular channels established for the consideration of a new parole request, and he would have been able to present evidence of whatever rehabilitative progress he might have achieved during that year. The Court is neither inclined nor required to speculate as to the outcome of a prompter rescission hearing, or as to the spirit with which a new parole request would have been received, or as to the degree of access which the prison officials would have allowed defendant to the facilities and programs generally made available to the general prison population. The point is that all access to all these benefits, all opportunity for him to seek to avail himself of them, was effectively foreclosed by the failure to seek an indictment promptly, which failure resulted in the defendant’s serving one year of “dead time.” Consideration of these four factors compels the Court to grant the motion to dismiss. The only remaining issue is whether the dismissal should be with or without prejudice. Because the remedy is drastic and because Rule 48(b) can be used as a device for mere calendar control, it is usually assumed that a 48(b) dismissal is without prejudice to the government’s right to rein-dict the defendant on the same charge. U. S. v. Correia, 531 F.2d 1095 (1st Cir. 1976); U. S. v. Stoker, 522 F.2d 576 (10th Cir. 1975); U. S. v. Clay, 481 F.2d 133 (7th Cir. 1973), cert, denied 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 133. It seems only proper, however, that when the order of dismissal is based on a finding of unnecessary, unjustified, and prejudicial delay, as here, the considered judgment of the court is not to be circumvented by reindictment of the defendant. See Clay, supra (negative implication); Salzmann, supra, 417 F.Supp. 1139. As the Circuit Court for the District of Columbia said in Mann, supra, 113 U.S.App. D.C. at 29, 304" }, { "docid": "674787", "title": "", "text": "U.S.C. §§ 661 and 1153 (1970). . Rule 21(a), Federal Rules of Criminal Procedure, provides: “The court upon motion of the defendant shall transfer the proceeding as to him to another district whether or not such district is specified in the defendant’s motion if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.” . The Government may obtain a second indictment charging identical or similar offenses and arising from the same events as a previous indictment either prior to or after dismissal of the earlier indictment under Rule 48(a), FRGrP. DeMarrias v. United States, 487 F.2d 19 (8th Cir. 1973), cert. denied, 415 U.S. 980, 94 S.Ct. 1570, 39 L.Ed.2d 877 (1974) ; United States v. Clay, 481 F.2d 133 (7th Cir. 1973), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 133 (1973) ; United States v. Bowles, 183 F.Supp. 237 (D.Me.1958). Of course the statute of limitations may run if a lapse of time occurs between dismissal and reindictment, or if the indictments are at all contemporaneous, continuous custody may trigger delay infringing a defendant’s Sixth Amendment right to a speedy trial. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 U.Ed.2d 468 (1971)." }, { "docid": "18450512", "title": "", "text": "defendant’s claim that his Sixth Amendment right to speedy trial has been violated, but prefers instead to consider these factors as they apply to the defendant’s alternate ground for dismissal. The alternate ground suggested by the defendant is the discretionary authority of the court to dismiss due to “unnecessary delay in bringing a defendant to trial.” Rule 48(b), Fed.R.Cr.P. See Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312 (1967); United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970) cert. denied 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970). In determining whether or not to exercise its discretion in this manner, the court should and does in this instance consider factors similar to those considered with respect to the constitutional argument of a denial of speedy trial. Hodges v. United States, 408 F.2d 543 (8th Cir. 1969). The trial court, as well as the government and the defendant, has an interest in prompt disposition of criminal indictments. Id.; Barker v. Wingo, supra; United States v. Clay, 481 F.2d 133 (7th Cir. 1973) cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 247 (1973). The Congress has formalized this concern by enactment of the Speedy Trial Act of 1974 (18 U.S.C. § 3161 et seq.) and this court has demonstrated its concern for minimizing undue delay and prompt disposition of criminal cases by adopting a plan to achieve this desired goal pursuant to Rule 50(b) of the Fed. R.Cr.P. (See order dated November 14, 1972). The court is persuaded that in light of the lengthy delay visited upon the defendant in this instance, prejudice to him is inherent, and that the indictment against the defendant Jesse Bernard Dowl should be dismissed. It appears to the court that such a result is in the best interests of the defendant, the system, and indeed even the government. To require the defendant to stand trial under the circumstances here presented would appear to the court to typify the adage that “justice delayed is justice denied”. Upon the foregoing, It is ordered That the motion of the defendant to dismiss" }, { "docid": "18455444", "title": "", "text": "not deprived of the right to a speedy trial. Initially, the court would observe that the initial case was quite complex, which, under Barker, would justify some sort of delay. Indeed, in this case defendants appear to have raised no objection to the period from indictment until January of 1974 and desired the time for preparation of their own case and the urging of pre-trial motions. Likewise, the delay from January until the termination of the Means-Banks trial was largely the result of defendants’ unwillingness to participate in simultaneous trials. Of more importance in consideration of this motion is the nature of defendants’ demand and absence of clear request for a prompt trial. As the Supreme Court said in Barker v. Wingo, at 536, 92 S.Ct. at 2195: “But barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial.” Here defendants’ demand was not for a speedy trial but for a joint trial, and under the circumstances in these cases, it appears that this is precisely what they desired. The government was prepared to go ahead with simultaneous trial if that was defendants’ desire, but they apparently did not. Finally, defendants have made no showing of prejudice. For the most part defendants were free on bail, eliminating any substantial claim of prejudicial incarceration. Likewise, though given the opportunity, defendants have failed to show any impairment of their defense or anxiety or apprehension over the ultimate outcome of the case. FRCrP 48 FRCrP 48 is a codification of the inherent power of a court to dismiss a case for want of prosecution. 8A Moore’s Federal Practice 48.03(1). It is not coextensive with the Sixth Amendment guarantee but rather implements that right. See, e. g., United States v. Clay, 481 F.2d 133, 135 (7th Cir. 1973); Hodges v. United States, 408 F.2d 543 (8th Cir. 1969); Cohen v. United States, 366 F.2d 363 (9th Cir. 1966); United States v. Mark II Electronics of Louisiana, Inc.," }, { "docid": "13556363", "title": "", "text": "at 738 n. 1 (48(b) analysis would still apply had case been dismissed without prejudice because dismissal had same effect as dismissal with prejudice — applicable statute of limitations had run and, consequently, the defendants could not be reindicted); United States v. Clay, 481 F.2d 133, 136-37 (7th Cir.1973), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 247 (1973) (forewarning requirement applied in case of indictment dismissed without prejudice). . Talbot and Grossman contend that the government should be charged with constructive knowledge of the court’s authority to dismiss the information. See United States v. Henry, 815 F.Supp. 325, 327 (D.Ariz.1993). Henry is inapposite to the facts before us, however. In Henry, the government did not present Henry’s case to the grand jury until nearly four years after the alleged crime occurred. Dismissing the indictment under Rule 48(b), the court reasoned that “[i]n these circumstances, the government is charged with the constructive knowledge of the Court’s statutory authority pursuant to Rule 48(b) and that is warning enough.” Id. (emphasis added). We find no similar evidence of pros-ecutorial neglect in the facts before us. Talbot and Grossman received citations immediately upon their arrest; the government filed the information and added the third count only nine months later. The government filed four separate motions on the case between January and October of 1993. We see no reason to apply the rationale of Henry to this case. .Rule 325-l(i) reads, in relevant part, \"the agenda at the pretrial conference shall consist of the following items [including] ... [pjretrial exchange of lists of witnesses intended to be called in person or by deposition to testify at trial....” . Although it is true that in non-capital cases, the defendant has no right to a list of prospective government witnesses, see United States v. Dischner, 974 F.2d 1502, 1522 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1290, 122 L.Ed.2d 682 (1993), in the instant case, the pretrial scheduling order required the government to produce a witness list before trial. . Unlike United States v. Schwartz, 857 F.2d 655, 659 (9th Cir.1988), the" }, { "docid": "20050091", "title": "", "text": "leave to dismiss without ruling on defendant’s motion, and the defense subsequently moved to dismiss the third indictment for abuse of grand jury process, denial of a speedy trial and under Rule 48(b). This motion was denied, and the three-day trial began on May 10, 1971. Pre-accusation delay (over three years on Count I and over a year and a half on Count II) has no bearing on the sixth amendment right to a speedy trial or on a Rule 48(b) motion. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). These rights relate only to the period between accusation, in the instant case the August 1969 indictment, and trial. The primary guarantee against bringing overly stale criminal charges is the appropriate statute of limitations, although where pre-indictment delay causes actual prejudice and was intentionally employed by the government to gain a tactical advantage, there may be a violation of due process. United States v. Marion, swpra. Since neither actual prejudice nor purposeful governmental delay has been shown, the pre-indictment time lapse is irrelevant. Even disregarding the pre-indictment delay, the twenty-two month delay between the first indictment and trial is alleged to violate the right to a speedy trial, especially when coupled with the government’s eleventh hour, allegedly “unjustified” change in indictments. The defendant contends that both the 1970 and 1971 indictments should have been dismissed under Rule 48(b). The 1970 indictment was dismissed pursuant to the government’s Rule 48(a) motion, made at a time when a superseding indictment was pending and unchallenged and when the government had no interest in prosecuting under it. In these circumstances, not to have granted leave to dismiss under Rule 48(a) would have been an abuse of discretion. See Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Defendant’s motion to dismiss the 1971 indictment more directly raises the speedy trial issue. This court has rejected any per se approach to the speedy trial guarantee which would hold or presume a violation solely due to the passage of time. United States v. DeLeo, 422" }, { "docid": "19048666", "title": "", "text": "However, the fact remains that Agent Wilder’s testimony was, in material part, corroborated by other government witnesses. The existence of this element then serves to distinguish our case from Ross. As stated above, the court in Ross was concerned with a defendant’s right to be eonvicted only upon reasonably reliable identification. Under the circumstances in our case where (1) the undercover agent had an independent recollection of the transaction which was substantially corroborated by two other government witnesses, and where (2) the police conduct in postponing the arrest was reasonable, we do not find that the resulting prejudice to the defendant, if any, resulted in a denial of due process. Whitted v. United States, 411 F.2d 107 (9th Cir. 1969); Wilson v. United States, 409 F.2d 184 (9th Cir. 1969). Accord ingly, defendant’s Motion to Quash the Indictment is denied. SPEEDY TRIAL Defendant also claims that the charges against him should be dismissed because the delay between the end of the government’s need for secrecy and the defendant’s arrest denied the defendant’s right to a speedy trial guaranteed by the Sixth Amendment and Rule 48(b) of the Federal Rules of Criminal Procedure. For the reasons stated below, we find that this claim is without merit. Initially, we find that this argument was not seasonably made since it was first raised with particularity in defendant’s Memorandum in Support of Post-Trial Motions. Even if we were to generously interpret defense counsel’s statements on the day of trial (N.T.T. pp. 2-4) to incorporate this argument, the motion to dismiss still could not be considered timely. Fleming v. United States, 378 F.2d 502 (1st Cir. 1967); Wright, Federal Practice and Procedure, § 814. Further, since we have determined that part of the pre-arrest delay was for a legitimate police purpose, and the other part was chargeable to the defendant, the delay cannot be characterized as “unnecessary.” Rule 48(b), Federal Rules of Criminal Procedure; Fleming v. United States, supra; Wright, supra, § 814. All other points raised by defendant have been considered and found to be lacking in merit. ORDER And now, this 15th day" }, { "docid": "18455445", "title": "", "text": "but for a joint trial, and under the circumstances in these cases, it appears that this is precisely what they desired. The government was prepared to go ahead with simultaneous trial if that was defendants’ desire, but they apparently did not. Finally, defendants have made no showing of prejudice. For the most part defendants were free on bail, eliminating any substantial claim of prejudicial incarceration. Likewise, though given the opportunity, defendants have failed to show any impairment of their defense or anxiety or apprehension over the ultimate outcome of the case. FRCrP 48 FRCrP 48 is a codification of the inherent power of a court to dismiss a case for want of prosecution. 8A Moore’s Federal Practice 48.03(1). It is not coextensive with the Sixth Amendment guarantee but rather implements that right. See, e. g., United States v. Clay, 481 F.2d 133, 135 (7th Cir. 1973); Hodges v. United States, 408 F.2d 543 (8th Cir. 1969); Cohen v. United States, 366 F.2d 363 (9th Cir. 1966); United States v. Mark II Electronics of Louisiana, Inc., 283 F.Supp. 280 (E.D. La.1968). Rule 48(b) gives the court discretion to dismiss an indictment where there has been unnecessary delay even though there has been no Sixth Amendment violation and under certain circumstances where no prejudice has been shown. See, e. g., United States v. Clay, supra; United States v. McKee, 332 F.Supp. 823 (D.Wyoming 1971); United States v. Navarre, 310 F.Supp. 521 (E.D.La.1969). While it appears that the rule imposes a more stringent standard upon the government than the Sixth Amendment, the precise limits and the standards for the exercise of this discretion are unclear. See United States v. Dallago, 311 F.Supp. 227 (E.D. N.Y.1970); United States v. Mark II Electronics of Louisiana, Inc., supra. The Eighth Circuit has indicated that the same factors which are relevant under the Sixth Amendment are likewise relevant under Rule 48(b). Hodges v. United States, supra. Here, under the circumstances outlined above, the court is not inclined to dismiss the indictment on these grounds. Due Process Defendants’ final claim in this regard is that the delay in" }, { "docid": "13872904", "title": "", "text": "government later uncover the missing evidence.” Substantially similar facts are now present before us. The Court’s dismissal was without prejudice and did not state that the defendant’s constitutional rights were violated. Under the rule of the Mann case, we cannot dismiss the present indictment on the grounds that the prior dismissal bars further indictments. See also: Cohen v. United States, 366 F.2d 363 (9 Cir., 1966); Hanrahan v. United States, 121 U.S. App.D.C. 134, 348 F.2d 363 (1965); United States v. Chase, 372 F.2d 453 (4 Cir., 1967). That the first indictment was dismissed for reasons other than constitutional ones is an action clearly authorized by Rule 48(b) of Federal Rules of Criminal Procedure. As stated in Mann with respect to appellant’s contention that a dismissal under Rule 48(b) for “want of prosecution” means that a defendant has been denied his right to speedy trial: “That Rule is much broader than he imagines. Undeniably, it implements the constitutional guarantee of a speedy trial. . . . But it goes further. As the Committee Note indicates, Rule 48(b) ‘is a restatement of the inherent power of the court to dismiss a case for want of prosecution.’ And that power is not circumscribed by the Sixth Amendment.” The defendant has not established that his right to speedy trial has been at present violated. Mere passage of time, in itself, does not necessarily constitute a denial of the right to speedy trial. United States v. De Leo, 422 F.2d 487, 494 (1 Cir., 1970). The rule we must apply to determine whether or not the defendant’s Sixth Amendment rights have been violated was expressed recently in United States v. Daley, 454 F.2d 505, at 508 (1 Cir., 1972): “What constitutes a speedy trial is relative, depending on the circumstances of each case. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627. . . . Three factors are relevant to this consideration: the length of the delay, the effect thereof on the defendant before and at trial, and the nature of the government’s conduct in prosecuting the case.” The" }, { "docid": "14259089", "title": "", "text": "the near future. With no realistic prospect of proceeding to trial on any date, we cannot say that the district court was obliged to continue the case and set it down for trial on another date prior to the expiration of the 180 day period. As the denial of the continuance was within the district court’s discretion, the dismissal of the indictment, presumably without prejudice, was not improper under Rule 48(b). We have often noted that the power of the district court to dismiss under Rule 48(b) for “unnecessary delay in bringing a defendant to trial” is not limited to those situations in which the Sixth Amendment right to a speedy trial has been violated. United States v. De Leo, 422 F.2d 487, 495 (1st Cir. 1970); United States v. Cartano, 420 F.2d 362, 363 (1st Cir. 1970). The government claims that there has been no unnecessary delay in this case, at least not of the magnitude normally associated with the Rule 48(b) dismissals. We agree that the language of the Rule, authorizing dismissals for “unnecessary delay” does not expressly cover the situation in this case where the delay was as much prospective as retrospective. But the policy of Rule 48(b) is not necessarily as limited as the language suggests. The Advisory Committee note explains that “[t]his rule is a restatement of the inherent power of the court to dismiss a case for want of prosecution.” Committee Note to Rule 48(b) in 8A J. Moore, Federal Practice 148.01[2] at 48-2. As the case had been called for trial, a continuance denied, and the government had professed its unreadiness to proceed to trial, we conclude that there was a sufficient showing of want of prosecution to support a dismissal under Rule 48(b). Moreover, we are satisfied that strong policy reasons support the decision to dismiss here. Dismissal of an indictment is strong medicine, even where reindictment is possible. But we have indicated rather stringent limits to judicial discretion in countenancing delay. United States v. Fay, 505 F.2d 1037 (1st Cir. 1974). While there are also limits on a district court’s discretion" }, { "docid": "18450511", "title": "", "text": "F.Supp. 268, 271 (S.D.N.Y.1968), that factor does not bear heavily in this instance as the defendant is charged with a rather uncomplicated crime and the witnesses are still available. See Barker v. Wingo, supra, 407 U.S. at 531, 532, 92 S.Ct. 2182. There is, however, some reason to believe that defendant was prejudiced by not being able to take part in certain rehabilitative programs and not having the opportunity to seek concurrent sentences. Smith v. Hooey, supra; Strunk v. United States, supra; United States v. Rucker, supra. In examining the factors that go into the balancing test, the court finds that the length of delay and the prejudice to the defendant weigh in favor of the defendant. The reason for the delay takes on rather neutral characteristics as does the assertion of the right by the defendant. However both could well be charged at least in part to the government. The court, while genuinely concerned about the delay in prosecution and the possible prejudice caused to the defendant, is not disposed to rule on the defendant’s claim that his Sixth Amendment right to speedy trial has been violated, but prefers instead to consider these factors as they apply to the defendant’s alternate ground for dismissal. The alternate ground suggested by the defendant is the discretionary authority of the court to dismiss due to “unnecessary delay in bringing a defendant to trial.” Rule 48(b), Fed.R.Cr.P. See Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312 (1967); United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970) cert. denied 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970). In determining whether or not to exercise its discretion in this manner, the court should and does in this instance consider factors similar to those considered with respect to the constitutional argument of a denial of speedy trial. Hodges v. United States, 408 F.2d 543 (8th Cir. 1969). The trial court, as well as the government and the defendant, has an interest in prompt disposition of criminal indictments. Id.; Barker v. Wingo, supra; United States v. Clay, 481 F.2d 133 (7th Cir." }, { "docid": "9877529", "title": "", "text": "(1953); United States v. Floyd, supra; United States v. Chieppa, 241 F.2d 635 (2d Cir.), cert, denied, 353 U.S. 973, 77 S.Ct. 1057, 1 L.Ed.2d 1136 (1957); Vachuda v. United States, 21 F.2d 409 (2d Cir. 1927). Denial of Speedy Trial Rucker contends that he was denied his right to a speedy trial under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., the Sixth Amendment, Rule 48 Fed.R.Cr.P., and the Western District’s Plan for Prompt Disposition of Criminal Cases. The defendant’s claim under Rule 48(b) Fed.R.Cr.P. is coterminous with his Sixth Amendment claim. See United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972), cert, denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973); United States v. Infanti, 474 F.2d 522, 527 (2d Cir. 1973). The indictment was filed against Rucker December 2, 1976, and he was arraigned December 6, 1976. The trial began October 17, 1977, slightly less than 11 months after indictment, at which time a jury was selected. After that date Rucker’s counsel moved to dismiss the case for lack of a speedy trial. The district judge, although noting that the motion was not timely made, assumed for the sake of argument that it was timely made and conducted a hearing. Thereafter he dictated an opinion order using the balancing test in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), denying the motion. The delay was caused by preparation for trial, discovery on both sides, and a heavy court docket. This is not a case where the government’s lengthy inexplicable delay in the face of demands for a speedy trial was so offensive as to offend the Sixth Amendment. Neither is it a case where the records show any actual prejudice to the defendant as a result of the delay. The institutional delay was not deliberate and did not result from governmental misconduct or negligence. The lapse of time was not excessive, particularly where only a few days imprisonment was involved. Not until the trial had started did the defendant assert his desire for a speedy trial, which" }, { "docid": "15231543", "title": "", "text": "48(b) states in part: “ * * * if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment * * * ” The general legal issue becomes a simple one, namely, what constitutes the “right to a speedy trial” in a federal criminal matter and what amounts to such “unnecessary delay”, as would warrant a dismissal of the indictment. However, when the law is applied to the varied circumstances in particular eases, the lines which separate necessary and unnecessary delay, legal and illegal action, become obscure and shadowed. “The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (1905). “ * * * (A)lthough a defendant has a right to a speedy trial (Sixth Amendment, as incorporated into Rule 48(b)), all that is required is that the pace of government proceedings be reasonable under all of the circumstances.” United States v. Kaufman, 311 F.2d 695, 698 (2d Cir. 1963). The Government contends that not only was the progress of the prosecution reasonable under all the circumstances, but that the defendants, Sherwood, Berman, and Korn, have waived any right to claim prejudice due to delay, since none of them has made any move to request a speedy trial since their arrest, to the present date. “The federal decisions, however, clearly establish that the right to a speedy trial is the defendant’s personal right and is deemed waived if not promptly asserted.” United States v. Lustman, 258 F.2d 475, 478 (2d Cir. 1958). “ * * * (I)t is not the law that the mere lapse of such period of time between commission of a crime and trial of an indictment therefor establishes denial of a speedy trial within the intendment of the sixth constitutional amendment. The amendment guarantees the legal right to an accused to demand and to be accorded a trial as soon as the orderly" }, { "docid": "7491555", "title": "", "text": "See Advisory Committee Notes to Rule 48, 8A Moore’s Federal Practice ¶ 48.-01. Rule 48(b) states: (b) By Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint. 1. When 48(b) Applies There are three periods of delay that may be relevant to Rule 48(b). The first is the one and one-third years between the local board’s filing of a delinquent status report with the United States Attorney and the indictment. Salzmann was ordered to report for pre-induction processing on May 27, 1970, and for induction on January 18, 1971; he obeyed neither order. On February 3, 1971, the local board notified the United States Attorney’s office of his delinquent status. In June of 1972, the government indicted defendant for his failure to report. The second period is the two and one-quarter years between indictment and the first motions made on Salzmann’s behalf. Twelve days after the indictment was filed on June 26, 1972, a bench warrant was issued. Thereafter the case lay dormant for over two years until this court, in September of 1974, in . an attempt to expedite the many outstanding selective service cases on its docket, appointed Professor Lusky attorney for Salzmann and twenty-six other defendants. The final period, lasting approximately two years, is the time during which this case has been actively before this court and on appeal. From September 1974 to the present, this court has heard motions, including the present motion to dismiss. Prior to 1971, there was no agreement as to the point at which the 48(b) right attaches to the defendant. Some courts had previously held that a defendant could rely on 48(b) as authority for dismissal of an indictment when there was unnecessary delay preceding the institution of any criminal proceedings. See, e. g., United States v. Jasper, 331 F.Supp. 814, 818-19 (E.D.Pa.1971), vacated, 460 F.2d 1224" }, { "docid": "20050090", "title": "", "text": "deemed a fatal defect, and the defendant was arraigned in Sep tember. The trial, initially scheduled for January 1971, was postponed until March due to several continuances requested by the government. The defendant consented to these continuances and at no time moved for a speedy trial. During February 1971 a Labor Department official noticed that the second indictment incorrectly referred to the Fund as an “employee welfare benefit plan” instead of an “employee pension benefit plan.” To correct this error, a new indictment was sought and returned on February 23. Two days later the government moved, pursuant to Rule 48(a) Fed.R.Crim.P. for leave to dismiss the 1970 indictment. When the case was called for trial in March the government was prepared to proceed under the third indictment, but the defense opposed granting leave to dismiss the second one, and the trial was continued in order to deal with this objection. The defense also moved to dismiss the second indictment for want of prosecution and unnecessary delay under Rule 48(b) Fed.R.Crim.P. The court granted the government leave to dismiss without ruling on defendant’s motion, and the defense subsequently moved to dismiss the third indictment for abuse of grand jury process, denial of a speedy trial and under Rule 48(b). This motion was denied, and the three-day trial began on May 10, 1971. Pre-accusation delay (over three years on Count I and over a year and a half on Count II) has no bearing on the sixth amendment right to a speedy trial or on a Rule 48(b) motion. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). These rights relate only to the period between accusation, in the instant case the August 1969 indictment, and trial. The primary guarantee against bringing overly stale criminal charges is the appropriate statute of limitations, although where pre-indictment delay causes actual prejudice and was intentionally employed by the government to gain a tactical advantage, there may be a violation of due process. United States v. Marion, swpra. Since neither actual prejudice nor purposeful governmental delay has been shown, the pre-indictment" } ]

[ { "docid": "22746597", "title": "", "text": "City of Jeannette, supra, at 164. But the allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury. A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e. g., Smith v. California, 361 U. S. 147. When the statutes also have an over-broad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, at 379. For “[t]he threat of sanctions may deter . . . almost as potently as the actual application of sanctions. . . .” NAACP v. Button, 371 U. S. 415, 433. Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser. Cf. Garrison v. Louisiana, 379 U. S. 64, 74-75. For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. Alabama, 310 U. S. 88, 97-98; NAACP v. Button, supra, at 432-433; cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517; United States v. Raines, 362 U. S. 17, 21-22. We have fashioned this exception to the usual rules governing standing, see United States v." } ]

[ { "docid": "22539101", "title": "", "text": "may be “impermissible.” Ante, at 618. It is possible, of course, that the inherent ambiguity of the Oklahoma statute might be cured by judicial construction of its terms. But the Oklahoma Supreme Court has never attempted to construe the Act or narrow its apparent reach. Plainly, this Court cannot undertake that task. Gooding v. Wilson, 405 U. S. 518, 520 (1972); United States v. Thirty-seven Photographs, 402 U. S. 363, 369 (1971). I must assume, therefore, that the Act, subject to whatever gloss is provided by the administrative regulations, is capable of applications that would prohibit speech and conduct clearly protected by the First Amendment. Even on the assumption that the statute’s regulatory aim is permissible, the manner in which state power is exercised is one that unduly infringes protected freedoms. Shelton v. Tucker, 364 U. S. 479, 489 (1960); Cantwell v. Connecticut, 310 U. S. 296, 304 (1940). The State has failed, in other words, to provide the necessary “sensitive tools” to carry out the “separation of legitimate from illegitimate speech.” Speiser v. Randall, 357 U. S. 513, 525 (1958). See NAACP v. Button, 371 U. S. 415, 433 (1963). Although the Court does not expressly hold that the statute is vague and overbroad, it does assume not only that the ban on the wearing of badges and buttons may be “impermissible,” but also that the Act “may be susceptible of some other improper applications.” Ante, at 618. Under principles that I had thought were established beyond dispute, that assumption requires a finding that the statute is unconstitutional on its face. Ordinarily, “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” United States v. Raines, 362 U. S. 17, 21 (1960). And appellants apparently concede that the State could prohibit the conduct with which they were charged without infringing the guarantees of the First Amendment. Nevertheless, we have repeatedly recognized that “the transcendent value to all" }, { "docid": "22682967", "title": "", "text": "case is not a pretty one, and it is possible that the State could constitutionally punish some of the activities described therein under a narrowly drawn scheme. But appellees challenge these regulations on their face, rather than as applied to a specific course of conduct. Cf. Gooding v. Wilson, 405 U. S. 518 (1972). When so viewed, I think it clear that the regulations are overbroad and therefore unconstitutional. See, e. g., Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). Although the State’s broad power to regulate the distribution of liquor and to enforce health and safety regulations is not to be doubted, that power may not be exercised in a manner that broadly stifles First Amendment freedoms. Cf. Shelton v. Tucker, 364 U. S. 479, 488 (1960). Rather, as this Court has made clear, “[precision of regulation must be the touchstone” when First Amendment rights 'are implicated. NAACP v. Button, 371 U. S. 415, 438 (1963). Because I am convinced that these regulations lack the precision which our prior cases require, I must respectfully dissent. I It should be clear at the outset that California’s regulatory scheme does not conform to the standards which we have previously enunciated for the control of obscenity. Before this Court’s decision in Roth v. United States, 354 U. S. 476 (1957), some American courts followed the rule of Regina v. Hicklin, L. R. 3 Q. B. 360 (1868), to the effect that the obscenity vel non of a piece of work could be judged by examining isolated aspects of it. See, e. g., United States v. Kennerley, 209 F. 119 (1913); Commonwealth v. Buckley, 200 Mass. 346, 86 N. E. 910 (1909). But in Roth we held that “[t]he Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.” 354 U. S., at 489. Instead, we held that the material must be “taken as a whole,” ibid., and, when so viewed, must appeal" }, { "docid": "22539102", "title": "", "text": "357 U. S. 513, 525 (1958). See NAACP v. Button, 371 U. S. 415, 433 (1963). Although the Court does not expressly hold that the statute is vague and overbroad, it does assume not only that the ban on the wearing of badges and buttons may be “impermissible,” but also that the Act “may be susceptible of some other improper applications.” Ante, at 618. Under principles that I had thought were established beyond dispute, that assumption requires a finding that the statute is unconstitutional on its face. Ordinarily, “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” United States v. Raines, 362 U. S. 17, 21 (1960). And appellants apparently concede that the State could prohibit the conduct with which they were charged without infringing the guarantees of the First Amendment. Nevertheless, we have repeatedly recognized that “the transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Gooding v. Wilson, supra, at 521, quoting from Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). We have adhered to that view because the guarantees of the First Amendment are “delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, [361 U. S. 147, 151-154 (1959)].” NAACP v. Button, supra, at 433. The mere existence of a statute that sweeps too broadly in areas protected by the First Amendment “results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. . . . Where regulations of the liberty of free discussion are concerned, there are special reasons for observing" }, { "docid": "22766121", "title": "", "text": "permitted significant interference with First Amendment freedoms in order to secure this country’s eminent interest in the integrity of the political process. But even there, we required the employment of “means closely drawn to avoid unnecessary abridgment.” Ante, at 25. This requirement was cogently expressed and supported by Mr. Chief Justice Burger, writing separately in Buckley: “We all seem to agree that whatever the legitimate public interests in this area, proper analysis requires us to scrutinize the precise means employed to implement that interest. The balancing test used by the Court requires that fair recognition be given to competing interests. With respect, I suggest the Court has failed to give the traditional standing to some of the First Amendment values at stake here. Specifically, it has failed to confine the particular exercise of governmental power within limits reasonably required. “ ‘In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.’ Cantwell v. Connecticut, 310 U. S. 296, 304 (1940). “ ‘Unduly’ must mean not more than necessary, and until today, the Court has recognized this criterion in First Amendment cases: “ ‘In the area of First Amendment freedoms government has the duty to confine itself to the least intrusive regulations which are adequate for the purpose.’ Lamont v. Postmaster General, 381 U. S. 301, 310 (1965) (Brennan, J., concurring). (Emphasis added.) “Similarly, the Court has said: “ ‘[Ejven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.’ Shelton v. Tucker, [364 U. S. 479, 488 (1960) (Stewart, J.)].” Ante, at 238-239 (concurring and dissenting). Similarly, in United States v. United States District Court, 407 U. S. 297 (1972), this Court held that the concededly legitimate Government need to safeguard domestic security through wiretapping did not ipso jacto vitiate protections vouchsafed by the Fourth Amendment, especially" }, { "docid": "5288308", "title": "", "text": "enactment is constitutionally overbroad if it sweeps within its regulations actions that are protected under the First Amendment. See NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). While the state may legitimately restrict activities which disrupt or are about to disrupt normal school activities, Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), the provision in the statute in question that reads “encoui’ages or condones” is not limited to activities which disrupt or are about to disrupt normal school activities. These plaintiffs as teachers are forced by this provision of the statute to relinquish rights that they would otherwise enjoy as citizens. Any comments or discussions the plaintiff-teachers might have that the school officials would construe as favoring a boycott or strike in the schools could cause them to suffer a forfeiture of their pay raise. The Supreme Court has more than once instructed that “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960), quoted in Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). Yet this provision in Act 3, in attempting to deter “mass truancy,” broadly sweeps within its provisions a variety of actions that are subject to First Amendment protections. “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963). Accordingly, we hold that Act 3, Acts of Alabama, Second Special Session, 1971, is facially unconstitutional in that it exceeds the permissible bounds of state regulation. It is so ordered. . Title 42, U.S.C. Sec. 1983. Civil Action for Deprivation of Rights. Every person who, under any color of any statute, . . ." }, { "docid": "22669505", "title": "", "text": "adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. “[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Gooding v. Wilson, 405 U. S. 518, 521 (1972), quoting from Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). See also Baggett v. Bullitt, 377 U. S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 616 (1971); id., at 619-620 (White, J., dissenting); United States v. Raines, 362 U. S. 17, 21-22 (1960); NAACP v. Button, 371 U. S. 415, 433 (1963). Since my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a “readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution,” Dombrowski v. Pfister, supra, at 491, I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 616. Cal. Penal Code § 311.2 (a) provides that “Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or" }, { "docid": "22343282", "title": "", "text": "to associate with the political party of their choice. But neither did the state attempts to compel disclosure of NAACP membership lists in Bates v. Little Rock and NAACP v. Alabama work a total restriction upon the freedom of the organization’s members to associate with each other. Rather, the Court found in those cases that the statutes under attack constituted a “substantial restraint” and a “significant interference” with the exercise of the constitutionally protected right of free association. The same is true of §7-43(d). While the Illinois statute did not absolutely preclude Mrs. Pontikes from associating with the Democratic party, it did absolutely preclude her from voting in that party’s 1972 primary election. Under our political system, a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections. A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process. By preventing the appellee-from participating at all in Democratic primary elections during the statutory period, the Illinois statute deprived her of any voice in choosing the party’s candidates, and thus substantially abridged her ability to associate effectively with the party of her choice. HH f-H J — H As our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest. Bates v. Little Rock, supra, at 524; NAACP v. Alabama, supra, at 463. For even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. Dunn v. Blumstein, 405 U. S., at 343. “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U. S., at 438. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme' that broadly stifles the exercise of fundamental personal liberties. Shelton v. Tucker, 364 U. S. 479, 488. The appellants here urge that the 23-month" }, { "docid": "22099699", "title": "", "text": "means chosen to implement that governmental purpose in this instance cut deeply into the right of association. Section 5 (a)(1)(D) put appellee to the choice of surrender ing his organizational affiliation, regardless of whether his membership threatened the security of a defense facility, or giving up his job. When appellee refused to make that choice, he became subject to a possible criminal penalty of five years’ imprisonment and a $10,000 fine. The statute quite literally establishes guilt by association alone, without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it. The inhibiting effect on the exercise of First Amendment rights is clear. It has become axiomatic that “[precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U. S. 415, 438 (1963); see Aptheker v. Secretary of State, 378 U. S. 500, 512-513; Shelton v. Tucker, 364 U. S. 479, 488 (1960). Such precision is notably lacking in §5 (a)(1)(D). That statute casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished and membership which cannot be so proscribed. It is made irrelevant to the statute’s operation that an individual may be a passive or inactive member of a designated organization, that he may be unaware of the organization’s unlawful aims, or that he may disagree with those unlawful aims. It is also made irrelevant that an individual who is subject to the penalties of § 5 (a)(1)(D) may occupy a nonsensitive position in a defense facility. Thus, §5 (a)(1)(D) contains the fatal defect of overbreadth because it seeks to bar employment both for association which may be proscribed and for association which may not be proscribed consistently with First Amendment rights. See Elfbrandt v. Russell, 384 U. S. 11; Aptheker v. Secretary of State, supra; NAACP v. Alabama ex rel. Flowers, 377 U. S. 288 (1964); NAACP v. Button, supra. This the Constitution will not tolerate. We are not unmindful of the congressional concern over the danger of sabotage and espionage" }, { "docid": "22099698", "title": "", "text": "defense” is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties — the freedom of association — which makes the defense of the Nation worthwhile. When Congress’ exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our “delicate and difficult task” to determine whether the resulting restriction on freedom can be tolerated. See Schneider v. State, 308 U. S. 147, 161 (1939). The Government emphasizes that the purpose of § 5 (a) (1) (D) is to reduce the threat of sabotage and espionage in the Nation’s defense plants. The Government’s interest in such a prophylactic measure is not insubstantial. But it cannot be doubted that the means chosen to implement that governmental purpose in this instance cut deeply into the right of association. Section 5 (a)(1)(D) put appellee to the choice of surrender ing his organizational affiliation, regardless of whether his membership threatened the security of a defense facility, or giving up his job. When appellee refused to make that choice, he became subject to a possible criminal penalty of five years’ imprisonment and a $10,000 fine. The statute quite literally establishes guilt by association alone, without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it. The inhibiting effect on the exercise of First Amendment rights is clear. It has become axiomatic that “[precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U. S. 415, 438 (1963); see Aptheker v. Secretary of State, 378 U. S. 500, 512-513; Shelton v. Tucker, 364 U. S. 479, 488 (1960). Such precision is notably lacking in §5 (a)(1)(D). That statute casts its net" }, { "docid": "22682966", "title": "", "text": "States, 354 U. S. 476 (1957). The State points out, however, that the regulation does not prohibit speech directly, but speaks only to the conditions under which a license to sell liquor by the drink can be granted and retained. But, as Mr. Justice Marshall carefully demonstrates in Part II of his dissenting opinion, by requiring the owner of a nightclub to forgo the exercise of certain rights guaranteed by the First Amendment, the State has imposed an unconstitutional condition on the grant of a license. See Perry v. Sindermann, 408 U. S. 593 (1972); Sherbert v. Verner, 374 U. S. 398 (1963); Speiser v. Randall, 357 U. S. 513 (1958). Nothing in the language or history of the Twenty-first Amendment authorizes the .States to use their liquor licensing power as a means for the deliberate inhibition of protected, even if distasteful, forms of expression. For that reason, I would affirm the judgment of the District Court. Mr. Justice Marshall, dissenting. In my opinion, the District Court’s judgment should be affirmed. The record in this case is not a pretty one, and it is possible that the State could constitutionally punish some of the activities described therein under a narrowly drawn scheme. But appellees challenge these regulations on their face, rather than as applied to a specific course of conduct. Cf. Gooding v. Wilson, 405 U. S. 518 (1972). When so viewed, I think it clear that the regulations are overbroad and therefore unconstitutional. See, e. g., Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). Although the State’s broad power to regulate the distribution of liquor and to enforce health and safety regulations is not to be doubted, that power may not be exercised in a manner that broadly stifles First Amendment freedoms. Cf. Shelton v. Tucker, 364 U. S. 479, 488 (1960). Rather, as this Court has made clear, “[precision of regulation must be the touchstone” when First Amendment rights 'are implicated. NAACP v. Button, 371 U. S. 415, 438 (1963). Because I am convinced that these regulations lack the precision which our prior cases require, I must" }, { "docid": "22634198", "title": "", "text": "freedoms.” NAACP v. Alabama, 377 U. S. 288, 307. As I have said, the right to travel is at the periphery of the First Amendment, rather than at its core, largely because travel is, of course, more than speech: it is speech brigaded with conduct. “Conduct remains subject to regulation for the protection of society. . . . [But i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” Cantwell v. Connecticut, supra, at 304. Restrictions on the right to travel in times of peace should be so particularized that a First Amendment right is not precluded unless some clear countervailing national interest stands in the way of its assertion. Time after time this Court has been alert to protect First Amendment rights which arc exercised in a context of overt action which is subject to governmental regulation. “In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.” Shelton v. Tucker, 364 U. S. 479, 488. See, e. g., Lovell v. Griffin, 303 U. S. 444; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, supra; Martin v. Struthers, 319 U. S. 141; Saia v. New York, 334 U. S. 558; Kunz v. New York, 340 U. S. 290; Schware v. Board of Bar Examiners, 353 U. S. 232, 239; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293; NAACP v. Button, 371 U. S. 415; Aptheker v. Secretary of State, supra. Mr. Justice Goldberg, dissenting. Last year approximately 2,750,000 Americans traveled abroad. More than 1,100,000 passports were issued or renewed, nearly 4,000 of which were obtained by journalists. This phenomenal amount of travel not only demonstrates our curiosity about things foreign, and the increasing importance of, and indeed often necessity for, travel," }, { "docid": "22669504", "title": "", "text": "an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley’s Queen Mab and the decorous promulgation of pantheistic ideas, on the ground that to attack religion is to loosen the bonds of society and endanger the state. This is simply a roundabout modern méthod to make heterodoxy in sex matters and even in religion a crime.” Z. Chafee, Free Speech in the United States 151 (1942). Me. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall join, dissenting. In my dissent in Paris Adult Theatre I v. Slaton, post, p. 73, decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or .the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. “[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Gooding v. Wilson, 405 U. S. 518, 521 (1972), quoting from Dombrowski v. Pfister, 380 U. S. 479, 486 (1965). See also Baggett v. Bullitt, 377 U." }, { "docid": "22682988", "title": "", "text": "Idlewild Liquor Corp., 377 U. S. 324, 329 (1964). Appellants have nowhere mentioned the Younger doctrine in their brief before this Court, and when the case was brought to the attention of the attorney for the appellants during oral argument, he expressly eschewed reliance on it. In the court below, appellants specifically asked for a federal decision on the validity of California’s regulations and stated that they did not think the court should abstain. See 326 F. Supp. 348, 351 (CD Cal. 1971). I am startled by the majority’s suggestion that the regulations are constitutional on their face even though “specific future applications of [the statute] may engender concrete problems of constitutional dimension.” (Quoting with approval Seagram & Sons v. Hostetter, 384 U. S. 35, 52 (1966). Ante, at 119 n. 5.) Ever since Thornhill v. Alabama, 310 U. S. 88 (1940), it has been thought that statutes which trench upon First Amendment rights are facially void even if the conduct of the party challenging them could be prohibited under a more narrowly drawn scheme. See, e. g., Baggett v. Bullitt, 377 U. S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611, 616 (1971); NAACP v. Button, 371 U. S. 415, 432-433 (1963). Nor is it relevant that the State here “sought to prevent [bacchanalian revelries]” rather than performances by “scantily clad ballet troupe [s].” Whatever the State “sought” to do, the fact is that these regulations cover both these activities. And it should be clear that a praiseworthy legislative motive can no more rehabilitate an unconstitutional statute than an illicit motive can invalidate a proper statute. Indeed, there are some indications in the legislative history that California adopted these regulations for the specific purpose of evading those standards. Thus, Captain Robert Devin of the Los Angeles Police Department testified that the Department favored adoption of the new regulations for the following reason: “While statutory law has been available to us to regulate what was formerly considered as antisocial behavior, the federal and state judicial system has, through a series of similar decisions, effectively emasculated law" }, { "docid": "22714803", "title": "", "text": "is the First Amendment. Prisoners are still ‘persons’ entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process. . . . Free speech and press within the meaning of the First Amendment are, in my judgment, among the pre-eminent privileges and immunities of all citizens.” Procunier v. Martinez, 416 U. S. 396, 428-429 (Douglas, J., concurring in judgment). With that premise, I cannot agree with the Court that California’s grossly overbroad restrictions on prisoner speech are constitutionally permissible. I agree that prison discipline, inmate safety, and rehabilitation must be considered in evaluating First Amendment rights in the prison context. First Amendment principles must always be applied “in light of the special characteristics of the . . . environment.” Tinker v. Des Moines School District, 393 U. S. 503, 506; Healy v. James, 408 U. S. 169, 180. But the prisoners here do not contend that prison officials are powerless to impose reasonable limitations on visits by the media which are necessary in particularized circumstances, to maintain security, discipline, and good order. All that the prisoners contend, and all that the courts below found, is that these penal interests cannot be used as a justification for an absolute ban on media interviews because “[b]road prophylactic rules in the area of free expression are suspect. . . . Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” NAACP v. Button, 371 U. S. 415, 438. And see Cantwell v. Connecticut, 310 U. S. 296, 311. It is true that the prisoners are left with other means of expression such as visits by relatives and communication by mail. But the State can hardly defend an overly broad restriction on expression by demonstrating that it has not eliminated expression completely. As Mr. Justice Black has said: ' “I cannot accept my Brother Harlan’s view [in dissent] that the abridgment of speech and press here does not violate the First Amendment because other methods of communication are left open. This reason for abridgment strikes me" }, { "docid": "615399", "title": "", "text": "that disclosure of membership lists results in reprisals against and hostility to the members, disclosure is not required. And see Bates v. Little Rock, supra, 523-524. We are in an area where, as Shelton v. Tucker, 364 U. S. 479, emphasized, any regulation must be highly selective in order to survive challenge under the First Amendment. As we there stated: “. . . even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Id., 488. The most frequent expressions of that view have been made in cases dealing with local ordinances regulating the distribution of literature. Broad comprehensive regulations of those First Amendment rights have been repeatedly struck down (Lovell v. Griffin, 303 U. S. 444; Schneider v. State, 308 U. S. 147; Cantwell v. Connecti cut, 310 U. S. 296), though the power to regulate the time, manner, and place of distribution was never doubted. As stated in Schneider v. State, supra, 160-161, the municipal authorities have the right to “regulate the conduct of those using the streets,” to provide traffic regulations, to prevent “throwing literature broadcast in the streets,” and the like. Yet, while public safety, peace, comfort, or convenience can be safeguarded by regulating the time and manner of solicitation (Cantwell v. Connecticut, supra, 306-307), those regulations need to be “narrowly drawn to prevent the supposed evil.” Id., 307. And see Talley v. California, 362 U. S. 60, 64. Our latest application of this principle was in Shelton v. Tucker, supra, where we held that, while a State has the undoubted right to inquire into the fitness and competency of its teachers, a detailed disclosure of every conceivable kind of associational tie a teacher has had probed into relationships that “could have no possible bearing upon the teacher’s occupational competence or fitness.” Id., 488. At one extreme is criminal conduct which cannot have shelter in the First Amendment. At the other extreme are regulatory measures which, no matter how sophisticated, cannot be employed in purpose or in" }, { "docid": "22682965", "title": "", "text": "been more provident for the District Court to have de- dined to give a federal constitutional ruling, until and unless the generalized provisions of the rules were given particularized meaning. Section 2 of the Twenty-first Amendment reads as follows: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” Even in cases on direct appeal from a state court, when the decision below leaves unresolved questions of state law or procedure which bear on federal constitutional questions, we dismiss the appeal. Rescue Army v. Municipal Court, 331 U. S. 549. Mr. Justice Brennan, dissenting. I dissent. The California regulation at issue here clearly applies to some speech protected by the First Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment, and also, no doubt, to some speech and conduct which are unprotected under our prior decisions. See Memoirs v. Massachusetts, 383 U. S. 413 (1966); Roth v. United States, 354 U. S. 476 (1957). The State points out, however, that the regulation does not prohibit speech directly, but speaks only to the conditions under which a license to sell liquor by the drink can be granted and retained. But, as Mr. Justice Marshall carefully demonstrates in Part II of his dissenting opinion, by requiring the owner of a nightclub to forgo the exercise of certain rights guaranteed by the First Amendment, the State has imposed an unconstitutional condition on the grant of a license. See Perry v. Sindermann, 408 U. S. 593 (1972); Sherbert v. Verner, 374 U. S. 398 (1963); Speiser v. Randall, 357 U. S. 513 (1958). Nothing in the language or history of the Twenty-first Amendment authorizes the .States to use their liquor licensing power as a means for the deliberate inhibition of protected, even if distasteful, forms of expression. For that reason, I would affirm the judgment of the District Court. Mr. Justice Marshall, dissenting. In my opinion, the District Court’s judgment should be affirmed. The record in this" }, { "docid": "22335488", "title": "", "text": "and “Communist-front” organizations. The restrictive effect of the legislation cannot be gainsaid by emphasizing, as the Government seems to do, that a member of a registering organization could recapture his freedom to travel by simply in good faith abandoning his membership in the organization. Since freedom of association is itself guaranteed in the First Amendment, restrictions imposed upon the right to travel cannot be dismissed by asserting that the right to travel could be fully exercised if the individual would first yield up his membership in a given association. Although previous cases have not involved the constitutionality of statutory restrictions upon the right to travel abroad, there are well-established principles by which to test whether the restrictions here imposed are consistent with the liberty guaranteed in the Fifth Amendment. It is a familiar and basic principle, recently reaffirmed in NAACP v. Alabama, 377 U. S. 288, 307, that “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” See, e. g., NAACP v. Button, 371 U. S. 415, 438; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293; Shelton v. Tucker, 364 U. S. 479, 488; Schware v. Board of Bar Examiners, 353 U. S. 232, 239; Martin v. Struthers, 319 U. S. 141,146-149; Cantwell v. Connecticut, 310 U. S. 296, 304-307; Schneider v. State, 308 U. S. 147, 161, 165. In applying this principle the Court in NAACP v. Alabama, supra, referred to the criteria enunciated in Shelton v. Tucker, supra, at 488: “[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.” This principle requires that we consider the congressional purpose underlying § 6 of the Control Act. The Government emphasizes that the legislation in question flows, as the statute itself declares, from the congressional" }, { "docid": "21869423", "title": "", "text": "384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966). In Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967), the Supreme Court, in another teacher oath case, again emphasized the need for “precision and clarity” in the “sensitive and important First Amendment area.” Similarly, in Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), the Supreme Court, in striking down certain New York statutes and administrative regulations dealing with the employment or retention of State employees because of vagueness, stated: “There can be no doubt of the legitimacy of New York’s interest in protecting its education system from subversion. But ‘even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ Shelton v. Tucker, 364 U.S. 479, 488 [81 S.Ct. 247, 252, 5 L.Ed.2d 231]. ****** We emphasize once again that ‘[precision of regulation must be the touchstone in an area so closely touching our most precious freedoms,’ N.A.A.C.P. v. Button, 371 U.S. 415, 438 [83 S.Ct. 328, 340, 9 L.Ed.2d 405]; ‘[f]or standards of permissible statutory vagueness are strict in the area of free expression. * * * Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ Id., at 432-433 [83 S.Ct., at 337-338]. New York’s complicated and intricate scheme plainly violates that standard. When one must guess what conduct or utterance may lose him his position, one necessarily will ‘steer far wider of the unlawful zone * * *.’ Speiser v. Randall, 357 U.S. 513, 526 [78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460]. For ‘[t]he threat of sanctions may deter * * * almost as potently as the actual application of sanctions.’ N.A.A.C.P. v. Button, supra [371 U. S.] at 433 [83 S.Ct. at 338]. The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed. See Stromberg v. [People" }, { "docid": "22433976", "title": "", "text": "of Elections, 383 U. S. 663, 667 (1966); Carrington v. Rash, 380 U. S. 89, 93-94 (1965); Reynolds v. Sims, supra.” We concluded: “[I]f a challenged statute grants the right to vote to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest. ” 405 U. S., at 337. (Emphasis in original.) To determine that the compelling-state-interest test applies to the challenged classification is, however, to settle only a threshold question. “Compelling state interest” is merely a shorthand description of the difficult process of balancing individual and state interests that the Court must embark upon when faced with a classification touching on fundamental rights. Our other equal protection cases give content to the nature of that balance. The State has the heavy burden of showing, first, that the challenged disenfranchisement is necessary to a legitimate and substantial state interest; second, that the classification is drawn with precision — that it does not exclude too many people who should not and need not be excluded; and, third, that there are no other reasonable ways to achieve the State's goal with a lesser burden on the constitutionally protected interest. E. g., Dunn v. Blumstein, supra, at 343, 360; Kramer v. Union Free School District, 395 U. S. 621, 632 (1969); see Rosario v. Rockefeller, 410 U. S. 752, 770 (1973) (Powell, J., dissenting) ; cf. Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); NAACP v. Button, 371 U. S. 415, 438 (1963); Shelton v. Tucker, 364 U. S. 479, 488 (1960). I think it clear that the State has not met its burden of justifying the blanket disenfranchisement of former felons presented by this case. There is certainly no basis for asserting that ex-felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government. See Kramer, supra, at 627. As the Secretary of State of California observed in his memorandum to the Court in support of respondents in this" }, { "docid": "22679358", "title": "", "text": "of Education, 373 U. S., at 674, n. 6. Cf. Cohens v. Virginia, 6 Wheat. 264, 404. The judge-made doctrine of abstention, first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U. S. 496, sanctions such escape only in narrowly limited “special circumstances.” Propper v. Clark, 337 U. S. 472, 492. One of the “special circumstances” — that thought by the District Court to be present in this case— is the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question. Harrison v. NAACP, 360 U. S. 167. Compare Baggett v. Bullitt, 377 U. S. 360. But we have here no question of a construction of § 781-b that would “avoid or modify the constitutional question.” Appellant’s challenge is not that the statute is void for “vagueness,” that is, that it is a statute “which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . .” Connally v. General Construction Co., 269 U. S. 385, 391. Rather his constitutional attack is that the statute, although lacking neither clarity nor precision, is void for “overbreadth,” that is, that it offends the constitutional principle that “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U. S. 288, 307. See Aptheker v. Secretary of State, 378 U. S. 500, 508-509; NAACP v. Button, 371 U. S. 415, 438; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293; Shelton v. Tucker, 364 U. S. 479, 488; Schware v. Board of Bar Examiners, 353 U. S. 232, 246; Martin v. City of Struthers, 319 U. S. 141, 146-149; Cantwell v. Connecticut, 310 U. S. 296, 304-307; Schneider v. State, 308 U. S. 147, 161, 165. Ap-pellee does not contest appellant’s suggestion that § 781-b is both clear and precise; indeed, appellee concedes that" } ]

[ { "docid": "23240537", "title": "", "text": "was the place where the pure heroin was kept.... Q. Who did Carlos Velez say was Sammy Aponte-Vega’s partner? A. He mentioned the name Quique. Q. Did you ever find out Quique’s true name? A. No. Q. Did you ever see the man that Carlos called Quique? A. No. {Id. 669-70.) Rivera, one of whose nicknames was “Qui-que,” contends that Velez’s testimony that Aponte-Vega had a partner named “Quique” who had a stash house was inadmissible hearsay. The government contends that (a) the statements were nonhearsay because they were statements of a coconspirator, and (b) even if they were hearsay, the admission of the statements was harmless. We agree only with the government’s latter contention. Under Fed.R.Evid. 801(d)(2)(E), an out-of-court statement is nonhearsay if it was made by a coconspirator in furtherance of the conspiracy. In order to admit a statement under this Rule, the court must find (1) that there was a conspiracy, (2) that its members included the declarant and the party against whom the statement is offered, and (3) that the statement was made both (a) during the course of and (b) in furtherance of the conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987); United States v. Tracy, 12 F.3d 1186, 1196 (2d Cir.1993); see also United States v. Mastropieri, 685 F.2d 776, 786 (2d Cir.) (declarations of one member of a conspiracy are admissible against another member “only if made ‘during the course of and in furtherance of the conspiracy”’ (quoting Rule)), cert. denied, 459 U.S. 945, 103 S.Ct. 260, 74 L.Ed.2d 203 (1982). To be “in furtherance” of a conspiracy, the statements must in some way have been designed to promote or facilitate achievement of the goals of that conspiracy, as by, for example, providing information or reassurance to a coconspirator, seeking assistance from a coconspirator, or by communicating with a person who is not a member of the conspiracy in a way that is designed to help the coconspirators to achieve the conspiracy’s goals. See, e.g., United States v. Tracy, 12 F.3d at 1196;" } ]

[ { "docid": "21990402", "title": "", "text": "391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), that a co-defendant’s out-of-court statements implicating other defendants are inadmissible when there is no opportunity to cross-examine the co-defendant. Statements satisfying the coconspirator non-hearsay rule under Federal Rule of Evidence 801(d)(2)(E) may be admitted against co-defendants without violating the Confrontation Clause. See Bourjaily v. United States, 488 U.S. 171, 182-84, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); United States v. Mickelson, 378 F.3d 810, 819 (8th Cir.2004); United States v. Shores, 33 F.3d 438, 442 (4th Cir.1994); United States v. DeVillio, 983 F.2d 1185, 1193-94 (2d Cir.1993). “[A] statement by a coconspirator of a party during the course and in furtherance of the conspiracy” is not hearsay under Rule 801(d)(2)(E). To admit such statements, the district court must find by a preponderance of the evidence that “there was a conspiracy involving the declarant and the nonoffering party, and that the statements were] made ‘during the course and in furtherance of the conspiracy.’ ” Bourjaily, 483 U.S. at 175, 107 S.Ct. 2775 (quoting Fed.R.Evid. 801(d)(2)(E)); id. at 176, 107 S.Ct. 2775; United States v. Gatling, 96 F.3d 1511, 1520 (D.C.Cir.1996). We review the district court’s factual findings for clear error. Gatling, 96 F.3d at 1521 (citing United States v. Edmond, 52 F.3d 1080, 1110 (D.C.Cir.1995) (per curiam)). The district court concluded that Smith was a coconspirator with Sweeney, Carson, and Coates and that Sweeney’s statements to him were made during the course of and in furtherance of the conspiracy. Rule 801(d)(2)(E) requires that the declarant be in a conspiracy with those against whom the statements are offered. Fed.R.Evid. 801(d)(2)(E); see, e.g., Bourjaily, 483 U.S. at 175, 107 S.Ct. 2775; Gatling, 96 F.3d at 1520. The evidence was overwhelming that Sweeney, Carson, and Coates were coconspirators, and the jury so found. Smith’s status as a coconspirator, while not essential to admissibility, is nevertheless relevant to whether Sweeney’s statements were made during the course of and in furtherance of the conspiracy, as the rule also requires. Carson and Coates acknowledge that Smith sold drugs to members of the conspiracy, including Reginald Switzer, Arthur" }, { "docid": "22595994", "title": "", "text": "finding the government met this standard. B. Statements of Co-Conspirators Pierce argues that the district court improperly admitted out-of-court statements made by Tackett. In particular, Pierce claims the district court should not have admitted Tackett’s statements that (1) Tackett stole a car in order to do a favor for Pierce, (2) he had to burn a church for Pierce and (3) he burned the Church as a favor to Pierce. The district court admitted the statements as non-hearsay under Federal Rule of Evidence 801(d)(2)(E). Rule 801(d)(2)(E) provides that “[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). In order to admit a statement of a co-conspirator the government must establish (1) that a conspiracy existed, (2) that the defendant was a member of the conspiracy and (3) that the co-conspirator’s statements were made in furtherance of the conspiracy. United States v. Clark, 18 F.3d 1337, 1341 (6th Cir.1994) (internal citations omitted). The district court must make these determinations under a preponderance of the evidence standard. Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). These are factual determinations which we review for clear error. United States v. Gesso, 971 F.2d 1257, 1261 (6th Cir.1992) (en banc). Pierce argues that Tackett’s out-of-court statements were improperly admitted, because the government failed to provide sufficient corroborating evidence independent of the statements to link Pierce to the conspiracy. Pierce correctly asserts that the district court cannot determine whether he was a member of the conspiracy based only upon Tackett’s statements. Prior to the adoption of Federal Rule of Evidence 104(a), “proof of a conspiracy required evidence independent of the hearsay statement itself (‘the independent evidence rule’).” Clark, 18 F.3d at 1341. In Bourjaily, the Supreme Court determined that the adoption of Rule 104(a) changed “the independent evidence rule.” The Supreme Court held that a district court can consider “any evidence whatsoever, bound only by the rules of privilege,” to" }, { "docid": "2371821", "title": "", "text": "statement was “suspect.” The district court, however, declined to adopt the recommendation, holding instead that the statement was admissi ble nonhearsay under Bourjaily v. United States, 483 U.S. 171, 182-84, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d 144 (1987), because made in furtherance of a conspiracy under Fed.R.Evid. 801(d)(2)(E). Glenn argues that the statement does not fall within the coconspirator exception of the Rule, which provides that \"[a] statement is not hearsay if [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.\" To admit a statement pursuant to the Rule, the court must find that (1) there was a conspiracy, (2) its members included the declarant and the party against whom the statement is offered, and (3) the statement was made during the course of and in furtherance of the conspiracy. United States v. Rivera, 22 F.3d 430, 435-36 (2d Cir.1994). In Bourjaily, the Supreme Court squarely rejected the notion that the federal Constitution requires a showing of independent indicia of reiabifity with respect to statements admitted pursuant to the \"firmly rooted\" coconspirator exception. 483 U.S. at 182-83, 107 S.Ct. at 2782. As an initial matter, Glenn argues that the state court did not make a proper predicate finding of conspiracy to justify admission under Fed.R.Evid. 801(d)(2). Under federal law, which governs Glenn's § 2254 habeas claims, a trial court need only find by a preponderance of the evidence that a conspiracy existed, a factual finding which we will not disturb absent clear error. United States v. Orena,, 32 F.3d 704, 711 (2d Cir. 1994). We agree with the State that the trial judge was presented with sufficient evidence from which he could-and did-determine that a \"conspiracy to transport or possess drugs\" had been formed between Glenn and DeWitt. In finding a conspiracy, the trial judge could properly rely on any evidence available to him, including the hearsay statement itself, United States v. Brooks, 82 F.3d 50, 53-54 (2d Cir.), cert. denied, U.S. -, 117 S.Ct. 267, 136 L.Ed.2d 191 (1996); United States" }, { "docid": "13807838", "title": "", "text": "reviewing court of a potential federal claim....” Anderson v. Harless, 459 U.S. 4, 7 n. 3, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Similarly, in Duncan, the Court held that the respondent’s federal habeas corpus claims were unexhausted, precisely because the respondent had failed to give the state court an adequate opportunity to address the federal claims. The Court remarked that \"[t]he state court, when presented with respondent's claim of error under the California Evidentiary Code, understandably confined its analysis to the application of state law.” 513 U.S. at 366, 115 S.Ct. 887. . 28 U.S.C. § 2254(b)(2) now states, in relevant part: \"An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” . Additionally, the Confrontation Clause normally requires that the prosecution demonstrate the unavailability of the witness whose statement it wishes to introduce as hearsay. See Wright, 497 U.S. at 814, 110 S.Ct. 3139. The Supreme Court has held, however, that a showing of \"unavailability[ ] was not required when the hearsay statement is the out-of-court declaration of a co-conspirator.” Bourjaily, 483 U.S. at 182, 107 S.Ct. 2775. . Similarly, under Federal Rule of Evidence 801(d)(2)(E), a statement is admissible hearsay if the court finds (1) that there was a conspiracy; (2) that its members included the declarant and the party against whom the statement is offered; and (3) that the statement was made both (a) during the course of and (b) in furtherance of the conspiracy. Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1116, 137 L.Ed.2d 317 (1997); United States v. Rivera, 22 F.3d 430, 435-36 (2d Cir.1994). Additionally, a trial court \"need only find by a preponderance of the evidence that a conspiracy existed.” Glenn, 98 F.3d at 728. Once the court has found a that a conspiracy exists, such a factual finding may not be disturbed absent clear error. Id. . The trial court also ruled these statements admissible under the excited utterance exception to" }, { "docid": "5914650", "title": "", "text": "cocn~ ~ to ~ h-i so'* \"* CO 05 M CO I — 1 I — ‘ — ^ 05 , oi £xi ¡2 I i — 11 -q C! ^ oo S'0 ¡XÍ £3 ~ ISO rfi. X 05 I — 11 CO (Emphasis added.) The government offered the ledger as evidence that defendant was involved in a methamphetamine distribution conspiracy. The district court admitted the various documents, explaining that it was satisfied by a preponderance of the evidence that there was a conspiracy to manufacture and distribute methamphetamine in existence, and that these documents were made by the Defendant himself, which, of course, make them admissible as an admission, [or] if they were not made by him, they were made by somebody who was ... obviously involved in this conspiracy, because they involve on their face statements regarding business transactions surrounding the methamphetamine deals that we’re concerned with here. Since the parties have concentrated most of their attention on the so-called coconspirator s exclusion to the rule against hearsay, Fed.R.Evid. 801(d)(2)(E), we shall focus on this rule as well. Rule 801(d)(2)(E) states that “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy” is not hearsay when introduced against the nonoffering party. There are three foundational prerequisites which must be established to admit a coconspirator’s statements under Rule 801(d)(2)(E): that a conspiracy existed; that defendant was a member of the conspiracy; and that the declarant’s statement was made during the course and in furtherance of the conspiracy. United States v. Hitow, 889 F.2d 1573, 1581 (6th Cir.1989) (citing United States v. Vinson, 606 F.2d 149, 152 (6th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980)). See also Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). These preliminary matters are findings of fact to be made by the district court pursuant to Fed.R.Evid. 104(a). They must be established by a preponderance of the evidence, Bourjaily, 483 U.S. at 176, 107 S.Ct. at 2779, and are reviewed only for clear" }, { "docid": "6436594", "title": "", "text": "provides that an admission by a party-opponent is not hearsay if the “statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Lifschultz asserts that the people who told Picardo and Hall about the conspiracy were coconspirators with the defendants and were making statements during the course and in furtherance of the conspiracy. “The party proffering statements as non-hearsay under Rule 801(d)(2)(E), must demonstrate the existence of a conspiracy and that the statements were made in the course of and in furtherance of that conspiracy.” Precision Piping & Instruments, Inc. v. E.I. du Pont de Nemours & Co., 951 F.2d 613, 621 (4th Cir.1991) (citing United States v. Jackson, 863 F.2d 1168, 1171 (4th Cir.1989)). The court need not look only to independent evidence when deciding whether a conspiracy existed. Instead, a court, “in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted.” Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987) (citing Fed.R.Evid. 104(a) for the proposition that in determining questions of admissibility, the court is not bound by the rules of evidence, except those with respect to privileges, and may therefore consider hearsay). In deciding whether to admit the disputed testimony as statements of cocon-spirators, this court is free to examine all the evidence, including the testimony itself, to determine if a conspiracy did in fact exist. Therefore, in order to demonstrate that the testimony of Hall and Picardo is admissible, Lifschultz must show that (1) a conspiracy existed; (2) that the declarants and the defendants were members of the same conspiracy; and (3) that the statements were made in the course of and in furtherance of that conspiracy. See Jackson, 863 F.2d at 1171. The offering party, Lifschultz, must prove these preliminary facts by a preponderance of the evidence. See Bourjaily, 483 U.S. at 175-76, 107 S.Ct. at 2778-79. Considering the evidence in the light most favorable to the plaintiff, this court finds that Lifschultz has" }, { "docid": "14221883", "title": "", "text": "convict Mr. Caro of conspiracy to distribute drugs. E. Coconspirator Statements Mr. Caro contends the trial court erred in admitting statements against him under FecLR.Evid. 801(d)(2)(E), which provides that “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy” is not hearsay. More specifically, he asserts the hearsay statements “should not have been introduced under the co-conspirator hearsay exception, as the court could not conclude as a result of the ‘James’ hearing that [he] was a part of a conspiracy or that the statements were made ‘in furtherance’ of the conspiracy.” This court will not disturb a trial court’s evidentiary ruling absent an abuse of discretion. United States v. Harmon, 918 F.2d 115, 117 (10th Cir.1990); United States v. Reyes, 798 F.2d 380, 383 (10th Cir.1986). Coconspirator’s hearsay statements are properly admitted into evidence pursuant to Fed.R.Evid. 801(d)(2)(E) if, by a preponderance of evidence, the trial court finds that 1) a conspiracy existed; 2) both the declarant and the defendant against whom the declaration is offered were members of the conspiracy; and 3) the statement was made in the course of and in furtherance of the conspiracy. United States v. Johnson, 911 F.2d 1394, 1403 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 761, 112 L.Ed.2d 781 (1990); United States v. Hernandez, 829 F.2d 988, 993 (10th Cir.1987), cert. denied, 485 U.S. 1013, 108 S.Ct. 1486, 99 L.Ed.2d 714 (1988). The trial court may consider the hearsay statements sought to be admitted as well as independent evidence when making these requisite findings. Bourjaily v. United States, 483 U.S. 171, 179, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987); Johnson, 911 F.2d at 1403. We review such findings under the clearly erroneous standard. United States v. Peveto, 881 F.2d. 844, 852 (10th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). Our review of the record confirms the trial court’s findings in this case. During the James hearing, Ms. Stallings testified as to the existence of and her participation in a drug conspiracy. In addition, Ms. Stallings testified as" }, { "docid": "7976686", "title": "", "text": "Further, the district court did not abuse its discretion in admitting these statements under Rule 801(d)(2)(E) as statements of co-conspirators. King argues that the taped conversations between Kingsley and Barquero did not contain sufficient “indicia of reliability” to pass constitutional muster, were not corroborated by independent evidence, and did not constitute adoptive admissions by King. Since Bourjaily v. United States, 483 U.S. 171, 182-83, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), this Circuit has rejected the indicia of reliability requirement. United States v. Beckman, 222 F.3d 512, 522-23 n. 7 (8th Cir.2000) (holding that Bowtjaily rejected the proposition that admission of a co-conspirator statement required sufficient indica of reliability); United States v. Roach, 164 F.3d 403, 409 n. 5 (8th Cir.1998) (“[T]he Supreme Court has explicitly rejected the need for a separate reliability inquiry.”). Because hearsay rules and the Confrontation Clause are generally designed to protect similar values, and stem from the same roots, ... no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception. We think that the co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that ... a court need not independently inquire into the reliability of such statements. Bourjaily, 483 U.S. at 182-83, 107 S.Ct. 2775 (internal quotations and citations omitted). To admit statements of co-conspirators under Federal Rule of Evidence 801(d)(2)(E), the government must demonstrate by a preponderance of the evidence “ ‘(1) that a conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy; and (3) that the declaration was made during the course and in furtherance of the conspiracy.’ ” Beckman, 222 F.3d at 522 (quoting United States v. Bell, 573 F.2d 1040, 1043 (8th Cir.1978)). Our review of the record demonstrates that the government met this burden in admitting the Kingsley/Barquero statements as those of co-conspirators. Furthermore, the fact that Kingsley allied himself with the government “has no effect on the continuing conspiratorial efforts of his former associates who remain at large,” and does not bar admission of his statements under Rule 801(d)(2)(E). United States v. Lewis," }, { "docid": "23288529", "title": "", "text": "misconstruing the proper scope of Fed.R.Evid. 801(d)(2)(E), which provides that “a statement is not hearsay if ... [it] is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Gigante argues that these evidentiary rulings constituted reversible error. To admit a statement under the eoeonspirator exception to the hearsay definition, a district court must -find two factors by a preponderance of the evidence: first, that a conspiracy existed that included the defendant and the declarant; and second, that the statement was made during the course of and in furtherance of that conspiracy. See Orena, 32 F.3d at 711; United States v. Maldonado-Rivera, 922 F.2d 934, 958 (2d Cir.1990) (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). We will not disturb a district court’s findings on these issues unless they are clearly erroneous. Moreover, any improper admission of coconspirator testimony is subject to harmless error analysis. See Orena, 32 F.3d at 711. The conspiracy between the de-clarant and the defendant need not be identical to any conspiracy that is specifically charged in the indictment. See id. at 713. In addition, while the hearsay statement itself may be considered in establishing the existence of the conspiracy, “there must be some independent corroborating evidence of the defendant’s participation in the conspiracy.” United States v. Tellier, 83 F.3d 578, 580 (2d Cir.1996); see also Fed.R.Evid. 801(d)(2). The identities of both the declar-ant and the witness who heard the hearsay evidence, however, are non-hearsay evidence that may be considered in assessing the reliability of the statement and finding the existence of a conspiracy. See Tellier, 83 F.3d at 580 n. 2; Fed.R.Evid. 801(d)(2) advisory committee’s note to 1997 Amendment. As to the second requirement, statements' made during the course and in furtherance of a conspiracy “must be such as to prompt the listener ... to respond in a way that promotes or facilitates the carrying out of a criminal activity.” Maldonado-Rivera, 922 F.2d at 958. This can include those statements “that provide reassurance," }, { "docid": "20803125", "title": "", "text": "they were admissible as nonhearsay statements in furtherance of a conspiracy of which Rajaratnam and Gupta were members. (Hearing Tr. 4.) Gupta challenges the rulings that Rajar-atnam’s statements to Lau and Horowitz were in furtherance of a conspiracy of which Gupta was a member. He contends that Lau was not alleged to be a coconspir-ator and that Rajaratnam’s statements to Horowitz were in furtherance only of a separate conspiracy between Rajaratnam and Shaulov. The government defends the court’s admission of the Rajaratnam statements as coconspirator statements in furtherance of a conspiracy of which Ra-jaratnam and Gupta were not the only members; in addition, it argues that Ra-jaratnam’s statements could properly have been admitted as statements against his penal interest. We conclude that, under Rules 801 and 804 of the Federal Rules of Evidence, Rajaratnam’s statements in all three conversations were admissible both as nonhearsay statements in furtherance of the Rajaratnam-Gupta conspiracy and under the exception for statements against penal interest. We address these issues separately with respect to the statements to Horowitz and those to Lau. 1. Statements in Furtherance of a Conspiracy Under Rule 801(d), an out-of-court statement offered for the truth of its contents is not hearsay if “[t]he statement is offered against an opposing party and” it “was made by the party’s coconspirator during and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). Thus, “[i]n order to admit a statement under this Rule, the court must find (a) that there was a conspiracy, (b) that its members included the declarant and the party against whom the statement is offered, and (c) that the statement was made during the course of and in furtherance of the conspiracy.” United States v. Maldonado-Rivera, 922 F.2d 934, 958 (2d Cir.1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2858, 115 L.Ed.2d 1026 (1991). In determining the existence and membership of the alleged conspiracy, the court must consider the circumstances surrounding the statement, as well as the contents of the alleged coconspirator’s statement itself. See Fed. R.Evid. 801(d)(2); see also Bourjaily v. United States, 483 U.S. 171, 176-81, 107 S.Ct. 2775, 97 L.Ed.2d 144" }, { "docid": "19676903", "title": "", "text": "facilities. The district court correctly concluded that the mujahidin form was properly authenticated. b. Co-conspirator exception to hearsay rule The government argues that even though the mujahidin form was hearsay, it was nevertheless admissible as “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). According to the government, “there existed an Al-Qaeda conspiracy to recruit and train Mujahidin and ... Al-Moayad directly participated in that conspiracy by, among other things, sponsoring Mujahidin for training with Al-Qaeda.” We disagree that the form could be admitted as a co-conspirator statement. We review a district court’s finding that hearsay is admissible under the co-conspirator exception for clear error. Maldonado-Rivera, 922 F.2d at 959. To admit hearsay testimony under Rule 801(d)(2)(E), the district court “must find (a) that there was a conspiracy, (b) that its members included the declarant and the party against whom the statement is offered, and (c) that the statement was made during the course of and in furtherance of the conspiracy.” United States v. Alameh, 341 F.3d 167, 176 (2d Cir.2003) (quoting Maldonado-Rivera, 922 F.2d at 958); see also 5 Weinstein’s Federal Evidence § 801.34[6][c][i] (“The existence and membership of a conspiracy are preliminary questions of fact that must be resolved by the district court before a challenged statement may be admitted under Rule 801(d)(2)(E).”). The court must find these preliminary facts by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 176, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). “[W]hile the hearsay statement itself may be considered in establishing the existence of the conspiracy, ‘there must be some independent corroborating evidence of the defendant’s participation in the conspiracy.’ ” United States v. Gigante, 166 F.3d 75, 82 (2d Cir.1999) (quoting United States v. Tellier, 83 F.3d 578, 580 (2d Cir.1996)); see also United States v. Desena, 260 F.3d 150, 158 (2d Cir.2001). In this case, the district court did not satisfy the requirements of Rule 801(d)(2)(E). The court made no findings, by a preponderance of the evidence or otherwise, about the existence of a conspiracy including" }, { "docid": "23288528", "title": "", "text": "elements of the ordeal of testifying in a courtroom that are reduced or even eliminated by remote testimony. However, two-way closed-circuit television testimony does not necessarily violate the Sixth Amendment. Because this procedure may provide at least as great protection of confrontation rights as Rule 15, we decline to adopt a stricter standard for its use than the standard articulated by Rule 15. Upon a finding of exceptional circumstances, such as were found in this case, a trial court may allow a witness to testify via two-way closed-circuit television when this furthers the interest of justice. The facts of Savino’s fatal illness and participation in the Federal Witness Protection Program, coupled with Gigante’s own inability to participate in a distant deposition, satisfy this exceptional circumstances require- raent, and'Judge Weinstein did not abuse his discretion by allowing Savino to testify in this manner. Savino’s testimony did not deprive Gigante of his right to confront his accuser under the Sixth Amendment. II. The Admission of Coconspimtor Testimony Gigante contends that Judge Wein-stein admitted substantial prejudicial testimony by misconstruing the proper scope of Fed.R.Evid. 801(d)(2)(E), which provides that “a statement is not hearsay if ... [it] is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Gigante argues that these evidentiary rulings constituted reversible error. To admit a statement under the eoeonspirator exception to the hearsay definition, a district court must -find two factors by a preponderance of the evidence: first, that a conspiracy existed that included the defendant and the declarant; and second, that the statement was made during the course of and in furtherance of that conspiracy. See Orena, 32 F.3d at 711; United States v. Maldonado-Rivera, 922 F.2d 934, 958 (2d Cir.1990) (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). We will not disturb a district court’s findings on these issues unless they are clearly erroneous. Moreover, any improper admission of coconspirator testimony is subject to harmless error analysis. See Orena, 32 F.3d at 711. The conspiracy" }, { "docid": "5799466", "title": "", "text": "U.S. 171, 176, 107 S.Ct. 2775, 2779, 97 L.Ed.2d 144 (1987), whether the elements of the coconspirator exception had been established by a preponderance of the evidence, see Garlington v. O’Leary, No. 87 C 871, mem. op. at 10-11, 1988 WL 37790 (N.D.Ill. April 18, 1988); R.30 at 10-11 [hereinafter Mem. op.], the district court concluded that the state’s evidence did “make[] it more likely than not that a conspiracy existed and that Garlington and Key were members of it.” Id. at 13. Thus, the court held that Mr. Key’s statement fell within the coconspirator exception to the hearsay rule, and admission of the statement did not violate Mr. Garling-ton’s sixth amendment right to confrontation. The obligation of Illinois is to employ in its criminal proceedings an evidentiary rule that satisfies the confrontation clause of the federal Constitution. See Pointer v. Texas, 380 U.S. 400, 403-04, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965) (holding that the confrontation clause is applicable to the states through the fourteenth amendment). In Bourjaily, the Supreme Court held that a coconspirator’s statement that is admissible under Fed.R.Evid. 801(d)(2)(E) satisfies the confrontation clause. See 483 U.S. at 182-84, 107 S.Ct. at 2782-83. While the federal rule is quite obviously not directly applicable to this state proceeding, we can use it as a helpful guide in assessing the admission of the statement by the Illinois court pursuant to Illinois evidentiary rules. If the Illinois ruling would have satisfied Fed.R.Evid. 801(d)(2)(E), it will also satisfy the constitutional requirement. Rule 801 provides that a statement offered against a party is not hearsay if it is a “statement by a coconspirator of a party [made] during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). Thus, in order for Mr. Key’s statement to be admissible under Rule 801, the state must have established three preliminary facts: (1) that a conspiracy existed, (2) that Mr. Garlington and Mr. Key were involved in the conspiracy, and (3) that the statement was made “during the course and in furtherance of the conspiracy.” Each of these factual elements must be established by" }, { "docid": "2371820", "title": "", "text": "combination” needed to open the suitcase violated the federal Confrontation Clause. Glenn objected to the statement at trial, but the trial judge allowed it into evidence on the basis that the evidence is clear that this was a conspiracy to transport or possess drugs. In such a situation, the conspiracy was still in progress and the testimony or statements of any of the conspirators during the course of the conspiracy are admissible against any other conspirators. On direct appeal, the Appellate Division found the statement improperly admitted, apparently because, under state law, it was hearsay which did “not bear sufficient indicia of reliability.” People v. Glenn, 185 A.D.2d at 88, 592 N.Y.S.2d 175. That court held, however, that the error was harmless in light of the “overwhelming” proof of Glenn’s guilt. Id. at 89, 592 N.Y.S.2d 175. On habeas review, the Magistrate Judge stated in his recommendation that DeWitt’s statement violated the federal Confrontation Clause because it did not fall within any exception in the Federal Rules of Evidence and the reliability of the hearsay statement was “suspect.” The district court, however, declined to adopt the recommendation, holding instead that the statement was admissi ble nonhearsay under Bourjaily v. United States, 483 U.S. 171, 182-84, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d 144 (1987), because made in furtherance of a conspiracy under Fed.R.Evid. 801(d)(2)(E). Glenn argues that the statement does not fall within the coconspirator exception of the Rule, which provides that \"[a] statement is not hearsay if [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.\" To admit a statement pursuant to the Rule, the court must find that (1) there was a conspiracy, (2) its members included the declarant and the party against whom the statement is offered, and (3) the statement was made during the course of and in furtherance of the conspiracy. United States v. Rivera, 22 F.3d 430, 435-36 (2d Cir.1994). In Bourjaily, the Supreme Court squarely rejected the notion that the federal Constitution requires a showing of" }, { "docid": "2371822", "title": "", "text": "independent indicia of reiabifity with respect to statements admitted pursuant to the \"firmly rooted\" coconspirator exception. 483 U.S. at 182-83, 107 S.Ct. at 2782. As an initial matter, Glenn argues that the state court did not make a proper predicate finding of conspiracy to justify admission under Fed.R.Evid. 801(d)(2). Under federal law, which governs Glenn's § 2254 habeas claims, a trial court need only find by a preponderance of the evidence that a conspiracy existed, a factual finding which we will not disturb absent clear error. United States v. Orena,, 32 F.3d 704, 711 (2d Cir. 1994). We agree with the State that the trial judge was presented with sufficient evidence from which he could-and did-determine that a \"conspiracy to transport or possess drugs\" had been formed between Glenn and DeWitt. In finding a conspiracy, the trial judge could properly rely on any evidence available to him, including the hearsay statement itself, United States v. Brooks, 82 F.3d 50, 53-54 (2d Cir.), cert. denied, U.S. -, 117 S.Ct. 267, 136 L.Ed.2d 191 (1996); United States v. Tellier, 83 F.3d 578, 580 (2d Cir.1996), and evidence of concerted efforts by the two men to deceive and evade the police in order to dispose of the incriminating drugs. In light of all of the facts, we cannot say that the finding of conspiracy was clearly erroneous. Glenn next argues that even if a conspiracy was properly found, the statement, made when DeWitt had an incentive to shift responsibifity for the drugs from himself onto Glenn, was not made \"in furtherance of\" the conspiracy. A statement is made in furtherance of a conspiracy if \"designed to promote or facilitate achievement of the goals of that conspiracy.\" Rivera, 22 F.3d at 436. This factual determination will not be reversed unless clearly erroneous. United States v. Rahme, 813 F.2d 31, 36 (2d Cir.1987). Glenn considers the Appellate Division's observation that \"[t]his was not a case where the statement was made to someone with whom the declarant was engaged in a joint criminal enterprise,\" People v. Glenn, 185 A.D.2d at 88, 592 N.Y.S.2d 175, to be" }, { "docid": "22796912", "title": "", "text": "the government. Morales challenges the admission of telephone conversations between himself and Latin King Julio Vasquez and between himself and Antuna. In addition, G. Rivera argues that certain statements made to Cyr and “Carmello,” a G. Rivera lieutenant, were also erroneously admitted as co-conspirator statements. These arguments are without merit. Fed.R.Evid. 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(d)(2)(E) provides that, notwithstanding Rule 801(c), “[a] statement is not hearsay if ... [it] is offered against a party and is ... a statement by a cocon-spirator of a party during the course and in furtherance of the conspiracy.” In order to admit an extra-judicial statement by a co-conspirator under Rule 801(d)(2)(E), the district court must find by a preponderance of the evidence “(1) that there was a conspiracy, (2) that its members included the declarant and the party against whom the statement is offered, and (8) that the statement was made both (a) during the course of and (b) in furtherance of the conspiracy.” United States v. Tracy, 12 F.3d 1186, 1196 (2d Cir.1993) (citing Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). In making a preliminary factual determination of these prerequisites, the court may consider the hearsay statements themselves. See Bourjaily, 483 U.S. at 181, 107 S.Ct. 2775. “However, these hearsay statements are presumptively unreliable, and, for such statements to be admissible, there must be some independent corroborating evidence of the defendant’s participation in the conspiracy.” United States v. Tellier, 83 F.3d 578, 580 (2d Cir.1996) (citation omitted). When an objection is made to the admission of alleged hearsay statements, we review a district court’s factual findings for “clear error.” United States v. Orena, 32 F.3d 704, 711 (2d Cir.1994) (citing Bourjaily, 483 U.S. at 181, 107 S.Ct. 2775). “Further, the improper admission of such testimony is subject to harmless error analysis.” Id. (citing United States v. Rivera, 22 F.3d 430, 436 (2d Cir.1994)). When no objection is" }, { "docid": "22433630", "title": "", "text": "like Tommy Cargill had told us it had been”; and (3) Lovell’s testimony concerning the murder weapon — \"Tommy Cargill had told us where we could find it.” Cargill also objects to the prosecutor’s references to these statements in his opening statement and during cross-examination. We reject as merit-less the appellee’s contention that Cargill failed to raise these claims in his state and federal habeas corpus petitions. . The constitutional right to confrontation does not, of course, bar all hearsay evidence. Bouija-ily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987); Dutton v. Evans, 400 U.S. 74, 80, 91 S.Ct. 210, 215, 27 L.Ed.2d 213 (1970) (plurality opinion). Where the hearsay statements at issue are the out-of-court declarations of a co-conspirator, those statements are deemed trustworthy for Confrontation Clause purposes if the government shows they bear sufficient “indicia of reliability.\" Bourjaily, 483 U.S. at 182, 107 S.Ct. at 2782; Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). The Supreme Court has held that \"no independent inquiry into reliability is required when the evidence ‘falls within a firmly rooted hearsay exception.’ ’’ Bourjaily, 483 U.S. at 183, 107 S.Ct. at 2782 (quoting Roberts, 448 U.S. at 66, 100 S.Ct. at 2539). However, ”[u]nder Georgia law, a statement by a co-conspirator is admissible as long as the co-conspirator's statement was made while '[t]he culprits [are] still concealing their identity.’ ’’ Horton v. Zant, 941 F.2d 1449, 1464 (11th Cir.1991) (first alteration added) (quoting Chatterton v. State, 221 Ga. 424, 144 S.E.2d 726, 732 (1965)), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992); see also O.C.G.A. § 24-3-5 (1995). Georgia's rule is thus broader than its federal counterpart. See Fed.R.Evid. 801(d)(2)(E) (\"a statement by a coconspirator of a party during the course and in furtherance of the conspiracy” does not constitute hearsay). In Bourjaily, the Supreme Court \"noted, in dicta, that the formulation used in Georgia ... is sufficiently different to mandate a case by case evaluation of the hearsay for indicia of reliability.” Horton, 941" }, { "docid": "12157064", "title": "", "text": "rule. Specifically, he challenges the District Court’s admission of (1) third-party statements through the testimony of Jamal al-Fadl, a government witness, El-Hage Br. 94; and (2) phone conversations recorded from a landline and cellular telephone used in Nairobi by El-Hage and other individuals, id. at 95, 97. Rule 801(d)(2)(E) provides that “[a] statement is not hearsay if [t]he statement is offered against a party and is ... [made] by a coconspirator of a party during the course and in furtherance of the conspiracy.” It also limits the extent to which a conspiracy can be proven with this type of evidence: “The contents of the statement shall be considered but are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.” Fed.R.Evid. 801(d)(2)(E). El-Hage claims that the District Court’s evidentiary rulings were erroneous because “the government never presented sufficient proof that many of the declar-ants were ... members of the conspiracies in which ... Mr. El-Hage is alleged to have participated.” El-Hage Br. 90; see also id. (asserting that “the statements were inadmissible because either (or both) the declarants were not proven to be members of any conspiracy to violate United States law, and/or because the conversations during which they were uttered were not in furtherance of any such conspiracy”). Because factual predicates for evidentiary rulings must be determined by the district court, see Fed.R.Evid. 104(a), “the existence of a conspiracy and [an individual’s] involvement in it,” as “preliminary questions of faet[,] ... must be resolved by the [district] court.” Bourjaily v. United States, 488 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). A preponderance-of-the-evidence standard governs the district court’s preliminary factual determination. Id. Accordingly, “[w]e review ... for clear error” a district court’s findings as to whether “ ‘there was a conspiracy involving the declarant and the nonoffering party, and [whether] the statement was made during the course and in furtherance of the conspiracy.’ ” United States v. Orena, 32 F.3d 704, 711 (2d Cir.1994) (quoting Bourjaily, 483 U.S. at 175-76," }, { "docid": "5799467", "title": "", "text": "a coconspirator’s statement that is admissible under Fed.R.Evid. 801(d)(2)(E) satisfies the confrontation clause. See 483 U.S. at 182-84, 107 S.Ct. at 2782-83. While the federal rule is quite obviously not directly applicable to this state proceeding, we can use it as a helpful guide in assessing the admission of the statement by the Illinois court pursuant to Illinois evidentiary rules. If the Illinois ruling would have satisfied Fed.R.Evid. 801(d)(2)(E), it will also satisfy the constitutional requirement. Rule 801 provides that a statement offered against a party is not hearsay if it is a “statement by a coconspirator of a party [made] during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). Thus, in order for Mr. Key’s statement to be admissible under Rule 801, the state must have established three preliminary facts: (1) that a conspiracy existed, (2) that Mr. Garlington and Mr. Key were involved in the conspiracy, and (3) that the statement was made “during the course and in furtherance of the conspiracy.” Each of these factual elements must be established by a preponderance of the evidence. See Bourjaily, 483 U.S. at 176, 107 S.Ct. at 2779; United States v. D’Antoni, 874 F.2d 1214, 1217 (7th Cir.1989). On appeal, Mr. Garlington maintains that the district court erred in holding that the statement was admissible under Rule 801 since the state failed to prove the last two elements by a preponderance of the evidence. 1. Participation in the conspiracy Mr. Garlington asserts that the evidence presented by the state at trial did not prove that he was a participant in the conspiracy to murder Renell Hentley, since it merely showed that he was associated with the coconspirators and may have had an opportunity to join the conspiracy. Mr. Garlington, however, does not now dispute the fact that the state has proven the existence of a conspiracy. While we have noted that mere association with conspirators is insufficient by itself to prove participation in a conspiracy, the circumstances surrounding a party’s actions can support an inference of participation in a conspiracy. United States v. Zambrana, 841 F.2d 1320, 1346" }, { "docid": "18636789", "title": "", "text": "Accordingly, the evidence is sufficient to sustain Defendant’s conviction. III. The district court admitted, over Defendant’s hearsay objection, Ramirez’s testimony which translated ten intercepted telephone calls between coconspirators. On appeal, Defendant contends that the statements were improperly admitted under Fed.R.Evid. 801(d)(2)(E) and that the admission of the statements violated his Sixth Amendment right to confrontation. A. Statements by coconspirators made during the course of and in furtherance of the conspiracy are considered nonhearsay and therefore admissible. Fed.R.Evid. 801(d)(2)(E). Before admitting such statements, the district court must be satisfied that “there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made ‘during the course of and in furtherance of the conspiracy.’ ” Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). The district court may consider the coconspirator statements themselves as well as independent evidence in making this preliminary factual determination. Id. at 181, 107 S.Ct. at 2781. The offering party must prove these preliminary facts by a preponderance of the evidence. Id. at 176,107 S.Ct. at 2779. Prior to admitting Ramirez’s testimony, the district court made the requisite findings based on the coeonspirator statements and Gonzales’ testimony. See III R. trans. at 95-97. Defendant argues that the district court’s finding that he was a member of the conspiracy at the time of the statements was clearly erroneous. See United States v. Caro, 965 F.2d 1548, 1557 (10th Cir.1992) (preliminary fact findings for admission of evidence under Rule 801(d)(2)(E) reviewed under clearly erroneous standard). All of the coconspirator statements were made during the conspiracy as alleged in the indictment. Moreover, all of the statements concern what can reasonably inferred to be drug transactions and, therefore, were made in furtherance of the conspiracy. The same facts that we have already determined were sufficient beyond a reasonable doubt to prove Defendant was ■ a member of the conspiracy were offered to show Defendant’s participation in the conspiracy as a predicate to admitting the coconspirator statements. Accordingly, we cannot say that the district court’s findings that Defendant was a member of" } ]